Tag: berne convention

Singapore’s New Copyright Act Three Years On: There’s No Need to Open the AI Exception Door Even Wider

Image: Shutterstock (modified)

The 2021 Revisions

Back in 2021 I wrote a mixed review of the revisions brought in to update Singapore’s Copyright Act. There were some significant positives for rights-holders, notably a new provision that made it illegal to sell ISDs (Illicit Streaming Devices, i.e. specially configured set top boxes) and associated software applications that offered access to pirated content (movies, television shows, sports events), or to advertise that the devices provided access to such content. Until the new law was brought in, Singapore had been a hotbed for streaming piracy with set top box retailers exploiting loopholes in the law to openly advertise and sell devices that could easily be modified to access pirated content. The ISD situation has improved markedly although illegal streaming of sports content remains a problem, with blocking of illegal offshore streaming sites (site blocking) being one solution. There were some other upsides for rights-holders as well, such as enhancing creator’s rights through a new right of attribution and providing a new public performance remuneration right for sound recordings. However, there were also some potential concerns and warning signs with regard to a broadening of copyright exceptions.

The Text and Data Mining (TDM) Exception

Some of the exceptions related to use by schools, galleries, museums and archives, and were suitably constrained to avoid negative commercial impact on content providers. Another more controversial exception was a Text and Data Mining (TDM) exception for “computational data analysis”. This was defined in the legislation as including the use of a computer program to identify, extract and analyze information or data from a work. Training for machine learning was used as an example. To me, that sounds a lot like scraping content to train AI algorithms. The 2021 TDM exception applied to both commercial and non-commercial uses (in many jurisdictions there are either no specific exceptions for TDM, as in Canada, or the use is limited to strictly non-commercial research purposes, as in the EU, where there is also an opt-out provision for rights-holders). The Singapore TDM exception is one of the broadest exceptions for AI training purposes anywhere. While it does have some safeguards, they are minimal.

Lawful Access Required

These safeguards require that the user have lawful access to the work. If the work is protected by a TPM (Technological Protection Method, aka digital lock) such as a paywall, and if the TPM is circumvented, or if the original was obtained from an online location known to have flagrantly infringed copyright, access would not be lawful. The Copyright Fact sheet explanatory brochure published by Singapore’s Intellectual Property Office provides the following illustration of this;

“A company is developing an artificial intelligence programme that can translate books from one language to another. To do so, the company carries out processes which involve making copies of various books in order to “teach” the programme how to recognise patterns. The company may rely on this exception to make the copies without first obtaining permission from the copyright owners of the books, provided that the company complies with the other conditions under this exception, such as not using the copies for any other purpose apart from computational data analysis. Moreover, the company must have lawful access to the materials that it copies. This means that it must first purchase the books it wants to use or subscribe to services that provide it with access to those books. The company should not circumvent paywalls to access the books.”

But Lawful Access Protection is Thin

Even this degree of protection does not really offer much comfort. For example, lawful access can be obtained by purchasing the cheapest or lowest minimal access possible and then using that access to justify commercial exploitation. Or, as in the example above, the company could purchase exactly one copy of each book that it wants to ingest. In the case of a paywall, instead of purchasing an institutional subscription, an employee of a company could purchase a single, individual subscription, gain lawful access and then proceed to exploit the content without licensing it. This is similar to the situation faced by the online journal in Canada, Blacklock’s Reporter, (which I wrote about here) where an employee of a government agency that employs 6000 people purchased a single subscription for about $150 and then shared the password for that subscription with whoever in that agency felt they needed access to the paywall-protected content. The Federal Court of Canada, in a controversial decision that is being appealed, found there was no infringement because the access was licitly obtained, and the use complied with fair dealing criteria.

Singapore has yet another loophole where an unlicensed user can mount an “I didn’t know” defence. Under the current law if the user did not know or could not have reasonably known that the copy of the work they were using was infringing, they could get a pass. (Gee, I didn’t know…and I didn’t try very hard to find out). Under another subsection, even if the first copy is an infringing copy “but the use of infringing copies is necessary for a prescribed purpose” and if the user “does not use the copy to carry out computational data analysis for any other purpose…”, a further exception to lawful use is created. In other words, using pirated content for TDM purposes is okay if the circumstances are right. All in all, the existing protection for rights-holders under Singapore’s laws is exceedingly thin.

Proposed Circumvention of Digital Protection for TDM Purposes

With respect to Text and Data Mining, this is the situation that has prevailed from 2021 until now. The exception was very broad but had some minimal guardrails (a requirement for legal access, with some exceptions) that provided a thin layer of protection for creators and content rights-holders. Now, however, even that minimal layer of protection is under threat. Pushed by the AI crowd, Singapore is now proposing to legalize circumvention of a TPM/digital lock for computational data analysis. In a consultation paper issued in April, the Ministry of Law sought input on the existing exceptions that currently allow for circumvention of digital locks (these include use of obsolete software, use of assistive technologies for audio and ebooks, educational uses of films in certified media courses, use of film clips for criticism or review in the making of a documentary, and a couple of others). Under the legislation, these must be reviewed every four years.

In addition to the review of existing exceptions that allow for the breaking of a digital lock, the Ministry is proposing three new purposes, on the premise that “circumvention should be allowed for… situations where access control measures are considered to adversely impair legitimate, non-infringing uses”. The new proposed exceptions to the prohibition on circumvention relate to use of copyrighted materials in a public collection for purposes of preservation and replacement, or for administrative purposes, (both unobjectionable) but also use of copyright works and protected performances for computational data analysis. In plain language, under this last provision, it would be legal in Singapore to hack a TPM (digital lock) that has been created by an author to protect access to copyrighted content as long as the intended use was for AI training purposes! Frankly, that is outrageous, and basically strips copyright owners of their rights to their property.

Of course, that is not how the Asia Internet Coalition sees it. Its brief to the Ministry it states that;

“The absence of an exception for computational analysis creates a disjointed regulatory landscape where conflicting laws may grant Text and Data Mining (TDM) rights but simultaneously prohibit their exercise. This ambiguity risks stifling investment and innovation in AI technologies. We emphasize the need for clear and coherent TPM laws that explicitly allow circumvention for fair use and TDM exceptions, ensuring legal certainty for stakeholders.”

The only “ambiguity” in the current law is that access must be lawful and hacking a digital lock to access the content renders the access unlawful. The AI crowd wants to strip away the sole, already-inadequate remaining protection for rights-holders.

Protecting TPMs (Digital Locks) and International Trade Commitments

On the other side of the equation, various rights-holder groups have weighed in, including IFRRO, the International Federation of Reproduction Rights Organizations (no, nothing to do with fertility or childbirth), the IIPA, the International Intellectual Property Alliance, the Copyright Alliance and the European Publishers Council, among others. IFRRO has based its comments on the lawful access argument. To hack a TPM that is protecting access to content is the antithesis of lawful access. Legalizing burgling doesn’t justify burgling. (My words, not IFRRO’s). IFRRO also points out that unduly permissive regimes have been rejected elsewhere, citing the EU and UK, and that they do nothing to sustain creative ecosystems over the long term. In addition to these arguments, the IIPA and the Copyright Alliance, both US based organizations, cite the 2004 Singapore-US Free Trade Agreement. That Agreement provides for a specified list of exceptions to the anti-circumvention rule (text and data mining is not among them) and while additional “temporary” exceptions (up to 4 years) are allowed, they must “not impair the adequacy of legal protection or the effectiveness of legal remedies that the Party (ie Singapore) provides against the circumvention of effective technological measures.” (Article 16.4.7 (f)).

There is also concern that, if adopted, the legalization of circumvention for AI scraping would violate the “three step test” of the Berne Convention, to which both Singapore and the US are parties. That provision requires that any exceptions to copyright protection be limited to (1) “certain special cases,” (2) “provided that such reproduction does not conflict with a normal exploitation of the work,” and (3) “does not unreasonably prejudice the legitimate interests of the author.” To strip away TPM access control protection for a copyrighted work so that another party can use the content for commercial purposes would clearly, in my view, be a violation of these terms of the Convention. That said, I am only aware of one situation where the three-step test has actually been litigated under WTO dispute settlement rules.

Don’t Throw Singapore’s Creators Under the Bus

Will these interventions have the desired effect of preventing the door allowing AI copyright exceptions from being kicked open even wider in Singapore? One would hope so, for the sake of creators everywhere, including those in Singapore. Throwing the creative industries under the bus to promote “innovation” in the name of generative AI development is a shortsighted and ultimately counterproductive strategy. One would hope that reasoning would have as much or more impact on Singapore policy makers as references to clauses in the US-Singapore FTA, but all arguments count.

Singapore’s Copyright Act review exercise needs to result in a balanced approach that protects creative industries while allowing for text and data mining within reasonable limits. The TDM exception door is already open very wide.  Kicking it open even wider would be a serious policy mistake.

© Hugh Stephens 2024. All Rights Reserved.

Two Hundred Years of Copyright History in Canada: What a Journey!

Image: Shutterstock (with AI assist)

As we approach July 1, Canada Day, Canada’s 157th anniversary, it is worth reflecting on the history that shaped this wonderful if imperfect country of now 41 million. While not top of mind for everyone, part of that history relates to copyright! This year, 2024, marks a couple of milestones in the history of copyright in Canada. It is 200 years since the first copyright bill was introduced into the Assembly of Lower Canada and it is 100 years since the entry into force of the legislation that established Canadian copyright sovereignty, the Copyright Act of 1921. During those two centuries, Canada’s copyright history has paralleled its economic and political development, moving from struggling to assert its independence from Britain to learning to live beside and accommodate the economic colossus south of the border. Internationally Canada moved from largely being, or wanting to be, a copyright outlier to a nation that has fully embraced the international rules-based order of copyright (although there are still some areas that could be strengthened).

As noted by Professor Myra Tawfik in her new book, “For the Encouragement of Learning”[i], on February 9, 1824, a “Bill for the Encouragement of Learning by Securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies during the Times therein mentioned”, was introduced into the Assembly of Lower Canada (now Québec) by François Blanchet, an elected member of the Assembly. This wording mirrored that of the Statute of Anne, the first piece of British copyright legislation protecting authors, adopted in 1710, and the US Copyright Act of 1790. Blanchet’s Bill died on the order paper but subsequently, in 1832, the first piece of copyright legislation in what is now Canada was passed by the Lower Canada Assembly.

The second milestone was the proclamation, on January 1, 1924, of the Copyright Act of 1921 which, with minor amendments, established the copyright framework in Canada for decades until revised in the late 1980s. Although copyright was one of the powers granted to the new Dominion of Canada in 1867, (and indeed Canada passed, or attempted to pass, copyright legislation on several occasions), if that legislation conflicted with British interests and imperial copyright law, it was blocked by the British government. The Copyright Act of 1921 resolved those conflicts. It also brought Canada fully into compliance with the terms of the 1886 Berne Convention, the first international treaty on copyright, which for many years Canada had agitated to leave, having acceded to Berne as part of the British Empire when the Convention was established. (After a perfunctory consultation, Canadian Prime Minister Sir John A. Macdonald had sent a telegram to London agreeing). In 1928, partly as an assertion of sovereignty, Canada acceded to Berne in its own right but subsequently had doubts about having joined (in part because the United States was not a member). Today, Canada has fully embraced the international copyright system through accession to most international copyright treaties and full acceptance of the terms of Berne incorporated into the TRIPS Agreement (Trade Related Aspects of Intellectual Property Rights), part of the World Trade Organization (WTO).

While the 1710 Statute of Anne provided, for the first time, protection to the authors of works, rather than printers, (for an initial period of 14 years, which could be extended for an additional 14 years), it did not apply to any British territories outside Britain, notably not to the North American colonies prior to 1776. Although amendments to the Statute in 1814 provided protection to British authors throughout the Empire, there was no protection for Canadian or other colonial authors unless they arranged to have their works first published in Britain and registered at Stationer’s Hall in London. Not surprisingly, very few did. The Lower Canada Copyright Act of 1832 established the first copyright in Canada for Canadian authors, although it only applied in what is now Quebec. However, after the union of Upper and Lower Canada in 1840 to form the Province of Canada, the 1841 Provincial Copyright Act, modelled on Lower Canada’s 1832 law, applied to both Canada East (Quebec) and Canada West (Ontario). Nova Scotia enacted its own copyright legislation in 1839.

Prof. Tawfik points out that much of the impetus for the introduction of early copyright legislation in British North America (BNA) came from a desire to encourage the publication of Canadian school texts. Given the dearth of local books at the time, various authors of local histories, maps and schoolbooks regularly approached the legislatures of the BNA colonies seeking financial support to print their works, either a subsidy to be provided in advance or a commitment to buy a certain number of the works at a predetermined price. While in some cases, subsidies were granted, a solution to the problem was to introduce a copyright law that would provide a means for authors to be self-sustaining through royalties. As Professor Tawfik notes, government in the colonies “…adopted the position that copyright relieved it of its responsibility to subsidize the printing of books” (p. 148).

Fair dealing was first introduced in Canada in the 1921 Copyright Act. The Act mimicked the 1911 Imperial Copyright Act which had, for the first time, enshrined fair dealing exceptions in British law, providing greater clarity than the previous common law approach. Fair dealing encompassed several exceptions to copyright protection, allowing unlicensed use of copyrighted works for specified purposes. At the time, these purposes were “research, private study, criticism, review or newspaper summary”. However, even if the dealing, or use, fell within these specified categories, other factors were also considered to determine whether the dealing was fair (e.g. amount or nature of the copying). That is essentially the position that prevails in Canada today, except that the list of specified fair dealing exceptions has been broadened to include, in addition to the original categories, parody, satire, and education, while the term “newspaper summary” has been broadened to “news reporting.”

The 1921 Act also brought Canada into conformity with Berne, a key concern of Britain given Canada’s reluctance to comply during the early decades of the Convention. The issue lay with printing rather than authorship and related in large part to the situation in the United States, where the printing lobby held sway in Congress. Initially the US refused to recognize the copyright of non-US residents and US printers freely copied (one might say “pirated”) British and other works. A couple of years ago, I discussed how Canada got caught in the crossfire on this issue. (International Book Piracy: How Canada Got Caught in the 19th Century British-US Copyright Wars). Joining Berne would have required the United States to recognize non-US copyrights (in return for US copyrights being recognized in other Berne countries), so it stayed out. In 1891 Congress passed the Chace Act whereby the US would recognize the copyrights of non-US authors provided that the work was printed in the US. In other words, the US would only recognize foreign copyrights if the foreign works were published there. Canadian printers wanted something similar. The Canadian Parliament tried to pass legislation containing compulsory printing requirements as a condition for allowing foreign and British works to enjoy copyright protection in Canada, only to have these laws blocked by London because of inconsistency with Berne and potential harm to British publishing interests.  

While Canada was never able to successfully institute a manufacturing clause linked to copyright as the US did, nevertheless like the US it required registration for a copyright to be valid and limited the term of protection to a fixed number of years after publication. In 1908, the Berne Convention countries abolished registration as a requirement (copyright was established automatically with no formalities upon creation as long as other criteria like originality, nationality, fixation etc. were met), while it also established the minimum term of protection to be the life of the author plus 50 years. Canada was worried that its term of protection would be longer than in the US (giving American authors better protection in Canada than vice versa) and was also wary about abolishing registration. Yet Britain wanted to ratify the 1908 revision and since Canada had entered Berne as part of the British Empire, it needed to get Canada onside to do it.

This finally happened with the 1921 Act, although Canada maintained a compulsory licence provision applicable to non-Berne authors for many years. This was aimed at the US, although it was never used. It was designed as leverage to gain an exemption from the US manufacturing clause for Canadian authors, a measure that was eventually successful. Canada also retained a voluntary registration system. As mentioned above, as part of its goal to assert sovereignty through independent treaty-making, Canada joined the Berne Union as a separate entity in 1928.

Despite full accession, Canada had second thoughts about joining Berne for several decades thereafter, largely because of concerns about printing and a view that copyright generated more income for foreign authors in Canada than for Canadian authors abroad. In the 1960s, Canadian officials viewed the country’s international copyright obligations solely through an economic “balance of trade” lens, considering the amount of royalties paid to foreign authors for distribution of their works in Canada as an economic drain, with little offsetting benefit, ignoring social and cultural objectives entirely.[ii] At one point, Canadian officials even took the risible and unsustainable position that Canada was a “developing country” from a copyright perspective and was therefore entitled to weaken its level of copyright protection. The fact that at the time the UN definition of a developing country was limited to those with a per capita income of less than US$300 per year, and that Canada had the third highest per capita income in the world, did not help Canada’s case. This narrow, utilitarian point of view still has advocates as we saw during relatively recent discussions regarding whether Canada should extend its term of copyright protection to match that of the US, EU, UK, etc., with some commentators claiming (with no credible evidence, as I pointed out here) that extension would cost Canada between $100 million and $450 million annually. Total nonsense.

The problem of net copyright revenue outflow back in the 1950s and 1960s lay not with copyright of course, but with the fact that Canadian authors were not particularly prolific or internationally known at the time. It seems not to have occurred to Canadian officials that a strong reciprocal copyright regime might have fostered the growth of Canadian writing and provided a needed economic incentive. Happily, the explosion of Canadian literature has ended most of the parochialism. In particular, the cultural vibrancy of Quebec creators and their success internationally eventually helped push the Canadian government toward a more pro-creator position by the mid-1980s.

Subsequently, copyright and intellectual property (IP) generally become intertwined with trade policy issues. The Uruguay Round leading to the establishment of the WTO was underway, and IP, including copyright, was one of the issues on the table in the negotiations. The Canada-US Free Trade Agreement of 1989 committed both parties to cooperate in the Uruguay Round and in other international forums to improve the protection of intellectual property. Copyright became “coinage” in the negotiations, to be bundled with other issues (like dairy quotas, automotive rules of origin, or investment rules) as a means to achieve overall negotiating objectives. In 1989, the US finally acceded to the Berne Convention, further harmonizing the international rules governing copyright, and all WTO members incorporated its principal provisions through TRIPS when the WTO was established in 1995. By this time, the World Intellectual Property Organization (WIPO) had been established (in 1970) to manage not only the Berne Convention, but other international treaties related to intellectual property, such as those dealing with patents and trademarks. As Canada has embraced trade liberalization and has meticulously adhered to the rules-based order in international trade out of its own self-interest, it has come to recognize and accept the benefits of a standardized international copyright framework and the benefit this brings in terms of cultural expression and cultural industries.

Copyright in Canada and internationally continues to evolve. The current challenge is AI, and the rules by which AI developers will be able to access copyrighted content to train their algorithms. Will there be a text and data mining (TDM) exception in Canada, similar to the fair dealing exceptions? If so, how broad, or how narrow, should that exception be in order to spur innovation without harming creators and cultural industries? Will there be further international rules to govern how AI and copyright can co-exist, and to what extent will Canada be a player in setting these rules?

Canada evolved from colony to nation as its copyright framework developed over the past 200 years. In the early days, Canada agitated for more control over copyright policy. When it achieved this, it played somewhat of a spoiler role, with one eye always on the US and its impact on Canada and the Canadian market. As Canada matured, it became more committed to playing by and contributing to the international consensus on copyright, although we are still an outlier in some respects, given the situation with educational fair dealing that has decimated the educational publishing industry and the incomes of many authors in Canada. This is a situation not faced in any other country—and needs to be fixed. Although we have come a long way, we still have some lessons to learn. It’s been quite a journey, and the journey continues.

© Hugh Stephens, 2024.

[i] “For the Encouragement of Learning: The Origins of Canadian Copyright Law”, (University of Toronto Press, 2023), p. 48

[ii] Sara Bannerman, in her book “The Struggle for Canadian Copyright”, (UBC Press, 2013) quotes the Secretary of State for External Affairs, in a Memorandum to Cabinet in 1967. Considering the wisdom of Canada staying in the Berne Union, he wrote, “An important consideration…is the fact that about 90 percent of the total cost (about $8 million) of copyright to the public in Canada is accounted for by the protection given foreign works. In turn compensation to Canadian authors by way of payments from overseas to Canada is minimal”. p. 160

As Creator’s Rights Face New Challenges, Canada Needs to Keep Pace with International Developments

Image by Greg Altmann/Pixabay

This blog post appeared first in Open Canada, the journal of the Canadian International Council, on November 20, 2023.

In the past few weeks there has been a flurry of activity with respect to international regulation of Artificial Intelligence (AI) such as the Bletchley Declaration spearheaded by UK Prime Minister Rishi Sunak, the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence signed by US President Biden, as well as the G7 AI Code of Conduct. Canada has been involved in some of these initiatives but will be affected whether or not it participates, including aspects of the AI issue dealing with protection of intellectual property, specifically creator’s rights protected through copyright laws. Indeed, there is a huge emerging issue related to whether the indiscriminate scraping of copyrighted content by AI developers to train their algorithms is legal under existing copyright laws, plus whether the output of content generated by AI can be legally protected under accepted copyright norms. 

When it comes to copyright challenges today, Canada has just launched a public consultation on this issue (”Copyright in the Age of Generative Artificial Intelligence”) as part of the process of updating Canada’s copyright framework in the digital age. The implications of the extent to which AI and copyright are compatible illustrate the interdependent nature of national copyright protection regimes, notwithstanding the fact that each nation interprets and applies copyright law in slightly different ways. The key point here is that countries that are too lax in protecting their creative sectors could see their copyright-protected cultural industries suffer negative economic impact; countries that are overly protective could see investment in AI innovation flow to countries with lower copyright standards. Whatever international consensus emerges and whatever framework to regulate AI is developed, whether it be OECD guidelines or a more formal arrangement, Canada will need to be a party. Such is the nature of international issues these days, with respect to digital issues, copyright and intellectual property generally. 

Canada is already bound by a number of international commitments with respect to its application of copyright, and these will undoubtedly have an impact on future and long overdue revisions to Canada’s Copyright Act. For example, the current international framework for protection of copyrighted works (books, films, music, performances, television and streaming content, broadcasts and other forms of copyright protected works such as software, paintings, drawings, photographs, etc.) is embedded in the TRIPS Agreement (WTO Agreement on Trade-Related Aspects of Intellectual Property Rights) that was a part of the establishment of the World Trade Organization in 1995. Canada, was of course, a party to TRIPS. With respect to copyright, TRIPS incorporates the terms of the Berne Convention, with the added benefit of a dispute-settlement mechanism to resolve disputes, something lacking in Berne. However, the WTO’s dispute settlement process is currently suspended owing to the inability to appoint new members to the WTO’s Appellate Body because of US opposition. The Berne Convention of 1886 (along with its periodic updates over the years) remains the bedrock of international copyright cooperation. 

When it comes to copyright legislation, it is generally accepted that the first modern copyright law is the Statute of Anne, passed by the British Parliament in 1710. The stated purpose of legislation was for “the encouragement of learning”. For the first time it gave authors (or those to whom they assigned their rights) rather than printers the exclusive right to print or reprint their books. The period of protection lasted for an initial period of fourteen years. This provision was included in the US Constitution “to promote the progress of science and useful arts…”, again with an initial period of protection of fourteen years. 

During the 18th and most of the 19th century, copyright laws were applied to nationals only of the country concerned or to works first published in a that country. Thus, British copyright applied in Britain (and the British Empire) to British authors but works by nationals of other countries could be freely reprinted in Britain unless first published there. The same applied in the US and other countries. Attempts were made to negotiate bilateral treaties under which reciprocal protection would be afforded the nationals the two countries concerned, but this resulted in a confusing patchwork quilt of protection. Eventually, under the leadership of the French novelist Victor Hugo, in 1886 the first international copyright treaty, the Berne Convention, was signed. Only eight countries ratified it initially, (Belgium, France, Germany, Great Britain, Italy, Spain, Switzerland and Tunisia). Notably absent was the United States which did not join Berne until 1989. Today, over 180 countries are members and some economies (like Taiwan, Hong Kong and Macao) that are not accessory states to Berne but are members of the WTO) also apply its terms.  

When Britain joined Berne in 1886, the Convention’s provisions applied to all parts of the British Empire, including Canada, as Canada was not at that time a fully sovereign state. Nonetheless, copyright was a power conferred on the new dominion established in 1867 and in 1868 Canada enacted its first Copyright Act. This ambiguity led to conflicts with the imperial government, and on several occasions Canada tried to exit Berne, before acceding in its own right in 1928. Canada also tried to pass legislation favouring Canadian works over those from Britain, only to have the legislation vetoed by the Governor-General. 

One of the issues was Canada’s desire to promote the Canadian printing industry. British works were protected by copyright in Canada but Canadian printers could normally not get printing rights from British publishers, despite the high cost of the imported British books. However, in the US, British works were freely printed without permission (“pirated”) because US copyright law did not protect British works. Canadian booksellers, instead of importing the expensive British editions of Charles Dickens and other British writers, would import the much cheaper pirated US editions. This was technically illegal, but the border was long and leaky. British publishers tried to pressure the British government to lean on Canada to block importation of their works printed in the US, but with limited success. 

Just as British works were not protected in the US, nor were US works protected in Britain or other countries such as Canada. Thus, Canadian printers freely reprinted Canadian editions of US works by writers such as Samuel Clemens (Mark Twain), without permission or payment of royalties. That was legal at the time but what was not legal was the resale of these Canadian editions back into the US, a frequent occurrence. Thus, Clemens famously complained about “Canadian pirates” and tried to publish some of his works first in Montreal so he could claim British and Canadian copyright. Finally in 1891, the US agreed to respect the copyrights of other nationalities but only on condition that their works be typeset in the US. 

For many years before it finally joined Berne in 1989, US publishers sought to obtain the benefits of Berne’s widespread international protection (applicable only to acceding parties) by simultaneously publishing works in the US and in Canada, through their Canadian publishing subsidiaries. This became known as “the back door to Berne”. Berne establishes a number of basic principles and commitment to minimum levels of protection by acceding states. For example, under Berne no formal registration is required to establish copyright provided that the fundamental requirements of originality, nationality and fixation are met, although registration can be provided as an option as is the case in both Canada and the United States. In the US registration is required if a legal action is taken to enforce a copyright. Berne also requires a minimum term of protection of the life of the “author” (meaning the creator of the work, even a visual work) plus 50 years after the author’s demise, although countries are free to establish a longer period of protection. The US, EU, and a number of other states, now including Canada, have extended the duration of copyright protection to “life plus seventy”, with a twenty-year extension allowing an author’s estate, or those who have acquired the rights, to have a longer period during which to exploit the work. 

A key principle under Berne is “national treatment”. That is, each country is required to apply the provisions of the Convention within its area of jurisdiction to both nationals and non-nationals on an equitable basis consistent with Berne’s minimum standards. Today Canada and the US are both parties not only to Berne but also to many of the myriad of specialized copyright treaties, such as the “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled”, which establishes exceptions to copyright for visually disabled people. 

It is not only international treaties that impose certain commitments on Canada, but also bilateral agreements such as the updated NAFTA, the CUSMA (called the USMCA in the US). One of the commitments that Canada made in CUSMA was to extend its term of copyright protection to align with that in the US. The implementing legislation for this commitment has now been enacted and the longer term of copyright protection came into effect in Canada on December 30  2022. However, the longer term applies only to works still under copyright protection. Any works that entered the public domain prior to that date do not benefit.  

Given recent Canadian government initiatives, such as Bill C-11 (the Online Streaming Act) and C-18 (Online News Act), both of which will require US companies ranging from Netflix and Disney to Facebook and Google to contribute financially to production of Canadian content, in the case of streaming, or in the case of C-18 and news content, to Canadian journalism, one could well ask whether the US will try to intervene on behalf of these large US content and tech companies. After all, one of the basic principles of CUSMA is national treatment for US companies in Canada, and vice versa, with specified exceptions. 

One of these exceptions is the so-called cultural exception, Article 32.6 of CUSMA, which relates to what could be called “copyright industries”. This article allows Canada to take actions to protect culture in ways that would be inconsistent with the Agreement but for the exception. Film and television production, as well as the publication of magazines, periodicals and newspapers, and radio, TV and cable broadcasting, are all included in the definition of a cultural industry. However, Article 32.6 has a sting in its tail. It allows the other parties (the US or Mexico) to take equivalent measures of retaliation in any sector of the economy if the cultural exception is invoked. In effect this means that if Canada uses the cultural exception to justify measures against US (or Mexican) companies, other sectors of the Canadian economy could suffer the consequences. As such, it is a poison pill, which explains why it is very improbable it will ever be used. Instead, if there is a US trade challenge to these pieces of legislation – which is unlikely given the range of US interests involved, (some of which support the legislation) – the Canadian government will not invoke the cultural exception but will argue the measures it is implementing are not aimed at US companies per se, but rather at specific commercial entities that have an excessive degree of competitive market power. Thus, there is no violation of the national treatment principle. At the present time, the only companies that fit the definition happen to be American, but in future the definition could extend to European companies or Chinese entities like TikTok or, potentially, Canadian companies.

All this just goes to show that no nation is an island, whether it concerns specialized areas like copyright or broader issues like AI harms. Copyright has adapted over the years to technological change, with AI being but the most recent example. Likewise, Canada has adjusted to the international framework regulating copyright, to its advantage and to the benefit of its creative industries, and it will need to continue to do so in future.

(c) Hugh Stephens, 2023. All Rights Reserved