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Content
Introduction
Terms
Structure
Significance
Historical
Cultural
Economic
Legal
Political
(i) International: Pursuit of ‘Cultural
Sovereignty’
(ii) National: Quebec, the First Nations &
Media Concentration
(iii) Provincial: Neighbouring Rights
(iv) Constitutional: The Natural Person and
the Crown
Conclusions
References
Introduction
This paper is an edited extract
from the introduction of my recent book: The Compleat Canadian Copyright Act
1921-2006: Present, Past & Proposed Provisions (Chartrand Sept. 2006). It
documents 85 years of the shifting balance of power between creators, users,
proprietors, Parliament and foreign interests reflected in the changing
provisions of the Act. It is the record of legislative attempts to accommodate
new ways, new technologies, to fix the expression of ideas or knowledge into a
material matrix thereby creating new subject matter for copyright, e.g.,
‘talking’ pictures, radio and television, VCRs, DVDs, WWW, et al and
in the process creating streams of royalties to be gained through their
exploitation. The provenance of each section of the current Act is traced out
from 1921 to June 2006 compiled from 59 statutes or bills receiving at least
first reading in the House of Commons. The work therefore also opens the door on
to the parliamentary debates, committee hearings and Canadian case law in which
members of the dramatis personae play out their roles in the evolving
story of legal rights and obligations that is the Act.
Terms
Certain terms of
Canadian statutory law are needed to navigate the text. These include:
a) “S.C.” or the Statutes of Canada followed by the year and chapter number,
e.g. S.C. 1988, c. 15 which reads Statutes of Canada 1988, chapter 15”;
b) “R.S.” or the Revised Statutes of Canada followed by
the year and consolidated chapter number, e.g.
R.S. 1985, c. C-42 which reads “Revised Statutes of Canada 1985, consolidated chapter 42”;
c) “Bill” that stands for a
Bill proposing changes to the Act made by the government of the day or by a
private member but which nonetheless did not receive Royal Assent, i.e., it did not become law,
e.g., Bill C-60, 2005; and,
d) “s.” or “ss.” or, respectively, section or sections of a statute, e.g., S.C. 1988, c. 65, ss. 61-64 which reads “Statutes of Canada 1988, chapter 65,
sections 61 to 64”.
Structure
The Act currently exists in
pieces spread out over many different statutory amendments. There is no single ‘official’ document
presenting all present provisions. This
will occur only with the next Revised
Statutes of Canada traditionally published every fifteen or twenty years
beginning in 1886 and then in 1906, 1927, 1952, 1970 and 1985. Such revisions consolidate amendments and make
non-substantive changes in wording, styling and structure, e.g., the change of “His Majesty’s Dominions” [R.S. 1927, c. C-32,
s. 2(i); R.S. 1952, c. C-55, s. 2(i)]
to “Her Majesty’s Realms and Territories” [R.S. 1970, c. C-30, s. 2; R.S. 1985,
c. C-42, s. 2] then repealed by S.C. 1997, c. 24, s. 1(5) as is likely in the
next Revised Statutes.
In the process names of individual
statutes, chapters and section numbering may also change. A concordance facilitates transition between
the old and new. It is not clear when
the next Revised Statutes of Canada
will appear or what amendments to R.S. 1985, c. C-42 will be included and which
must wait another fifteen or twenty years.
Significance
The Canadian Copyright Act has significance
for many facets of Canadian life beyond music downloads and photocopying. I will examine five: the historical, cultural,
economic, legal and political significance of the Act. My conclusion: the Act, and intellectual
property rights (henceforth ‘IPRs’) in general, are too important to be left to
industry and politicians. It defines who
we are as a creative, democratic nation.
Historical
Significance
The Canadian Copyright Act is an evolving
work product of Parliament striving to fulfill its constitutional
responsibility for copyright. That
responsibility, however, was not fully assumed until 1921, more than fifty
years after Confederation. Until then it
was divided between the Imperial
Copyright Act and sections of other Imperial and Canadian statutes, e.g., the
Criminal Code of Canada.
During this time, the Parliaments at Westminster and Ottawa were often at odds over which provisions should
prevail as the law of the land (Allingham 2001).
Assumption of full
responsibility with a ‘made-in-Canada’ An
Act to amend and consolidate the Law relating to Copyright, (S.C. 1921, c. 24) brought with it, however, British common law precedents stretching
back long before the historic 1710 Statute
of Queen Anne. This was the first
modern copyright act because for the first time in English history authors were
granted statutory rights to their works.
The word ‘copyright’ itself, however, did not enter the English language
until 1735 (OED, copyright). These
rights, nonetheless, were fully transferable, by contract, to ‘proprietors’, i.e., printers, booksellers or
publishers. The change, in fact, was
less a boon to authors than to proprietors because it meant that copyright was
to have another function. Rather than
simply being the right of a publisher to be protected against piracy, copyright
would henceforth be a concept embracing all the rights that an author might have
in a published work.
It was such
‘proprietors’ who, prior to the Statute
of Queen Anne, enjoyed ‘Stationers’ Copyright’. In 1557, Queen Mary I granted a charter to
what became the Company of Stationers of London. Stationers’ Copyright was based on royal
prerogative or letters patent covering the entire publishing industry as an
estate. The monopoly was assigned to
members as a freehold interest. No
consideration was given to author’s rights.
It was perpetual at the pleasure of the Crown. Stationers’ Copyright and patents of
invention were, significantly, the only Crown monopolies to escape dissolution
under the Statute of Monopolies of
1624 during the reign of James I.
The reason for its
survival was its political usefulness in fostering the political and religious
orthodoxy of the day, no matter who was in power – Anglican, Catholic or
Protestant (Patterson 1993). It was
intended to limit or to censor the domain of public discourse. Nonetheless, all rights granted to the author
and hence to proprietors after 1710 remain subject to the Crown. Illustrative is the following Canadian
example:
7. Exception to immoral works
No literary, scientific or artistic work which is
immoral, licentious, irreligious, or treasonable or seditious, shall be the
legitimate subject of such registration or copyright.
R.S. 1906, c.70, s. 7
Copyright is, in
fact, historically rooted in censorship, pre-publication licensing and grants
of industrial privilege initiated by the Tudor monarchs in response to
introduction of the printing press in 1476 (Chartrand 2000). Its root is therefore not the ‘natural rights’
of the creator associated with the other page of the Canadian statute book: en français – drôit d’auteur, i.e., rights
of the author. The British root is printer’s
copyright intended to propel works into the marketplace by granting rights to
secondary creators like publishers, recording companies and motion picture
studios (Vaver 1987). It is, in effect, trade
regulation of a State-sponsored monopoly.
Its root is not the natural rights of the creator cum the European Civil Code which primarily intends to promote
culture.
In this regard the
first international intellectual property rights convention was the 1883 Paris Convention for the Protection of
Industrial Property covering patents, trademarks and registered industrial
designs. That copyright was not ‘industrial
property’ (Keyes & Brunet 1977, 3) was formalized with the 1886 Berne Convention for the Protection of
Literary and Artistic Works which introduced Civil Code concepts such as
moral rights and the public domain into the English legal lexicon.
There is thus an
inherent tension between two distinct legal traditions within the pages of the
Canadian Copyright Act itself. This is evident in Bill C-60, 2005 regarding
moral rights in performances, recordings and communications. While it is proposed that such rights shall not
be assignable as in the Civil Code, they may be waived by contract unlike the
Civil Code. The most succinct expression
of moral rights is that they are “inalienable, unattachable, impresciptible and
unrenounceable” (Andean Community 1993).
Full responsibility
for copyright in 1921 also brought Canadian precedents, especially those
concerning the predatory U.S. Copyright
Act. Article I, Section 8 of the
1788 U.S. Constitution (known as the
Intellectual Property or Copyright Clause) states, in very natural rights
terms:
The Congress shall have Power ... To promote the
Progress of Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries;
Two years later,
however, Congress passed the first U.S.
Copyright Act of 1790 entitled: An
Act 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. The key change is
the term “Proprietors’. The U.S. increasingly looked upon copyright as an
instrument of industrial independence from Britain, specifically in the printing trades. It was not
and arguably still is not seen primarily as an incentive for creators in the
natural rights tradition. Thus no
royalties were paid to foreign authors (generally British) whose works were
cheaply re-printed. Copies were then
sold legally in the U.S. and illegally, at very low prices, elsewhere in
the English-speaking world including Canada. American
printer/publishers had a field day while Canadian competitors languished under
royalties imposed by the Imperial
Copyright Act. While this piratical U.S. regime ended with the
Chace Act of 1891, the fact remains that until 1984 no book written by
an American author could be sold in the United States unless printed there. This was known as the ‘Manufacturing Clause’. It is against this historical backdrop of
conflicting legal traditions and national self-interest that the Canadian Copyright Act of 1921 was born.
Cultural
Significance
Canada prides itself on being a bilingual and bicultural (English/French) as well
as a multicultural society of which I will have more to say below. For now, however, it is important to note
that Canada is also bi-juridic operating
with Anglosphere Common Law in English-speaking Canada and European Civil Code in the Province of Quebec. Just as language structures human thought,
law structures attitudes and behaviour contributing to the ethos or distinctiveness
of a culture. With the exception of the Republic of South Africa, Canada is the only English-speaking country to operate
with both legal traditions. In this
regard McGill University Law School in
Montreal was the first and I believe remains the only law school
in the world to offer a joint program in Common Law and Civil Code. One difference between the two is precedent
(Common Law) versus principle (Civil Code) (Chartrand 2006). As human artifacts,
of course, both have strengths and weaknesses and both are less than ideal in
practice.
While the American Republican
Revolution overturned the ancient regime of subordination by birth it nonetheless
adopted English Common Law and precedent governing business including copyright
(Commons 1924). The French Republican Revolution, on the other
hand, overturned not just the regime but also the old French common law. It was replaced by the Napoleonic Code or what
became the Civil Code. It is a legal
code rooted in ‘natural rights’ as seen at the height of the 18th century
Republican Revolution, e.g., moral
rights of creators.
Both legal traditions are mutagenicly at play in
and out of the Canadian Copyright Act. In 1986, for example, Canada introduced
a ‘neighbouring right’ outside the Act: the Public Lending Right. This compensates Canadian authors when their
books are lent to the public by libraries.
With S.C. 1988, c. 15, the term ‘moral rights’ entered the Act for the
first time. In turn, S.C 1997, c. 24 introduced
levies on blank recording materials to compensate creators for private copying. These rights do not exist in, or out of, the
U.S. Copyright Act. Nonetheless, all moral rights in the Canadian
Act are subject to contract, i.e.,
they are not ‘imprescriptibles’. By
contrast, the Public Lending Right is imprescriptible and cannot be transferred
to a publisher or agent, only to an author’s heirs.
One critical Civil Code concept not in the present
Act is ‘the public domain’. The term entered
“Anglo-American copyright discourse through the French of the Berne Convention”
in 1886 (M. Rose 2003, 84). The public
domain is where knowledge is at home as a public good, i.e., it is non-excludable
and non-rivalrous in consumption. In the public domain everyone has the
right to know and my use does not reduce the knowledge available to you. Intellectual
property rights make new knowledge rivalrous and excludable by law, not by
nature. It is protected, however, only
for a limited time after which it too enters the public domain.
For that period, however, it is ‘enclosed’
(Boyle 2004). It is fixed in a work that
is the exclusive possession of its creator who determines access and
application. Generally, however, this is
a corporate proprietor, i.e., a legal
rather than a natural person, using an ‘all-rights’ or ‘blanket licence’ granted by the creator and increasingly including a
waiver of moral rights. In other words,
where intellectual property rights privatize knowledge limiting access through
price and other mechanisms, in the public domain knowledge is free to all
without cost or constraint. In this sense there are two knowledge domains
– the public and the private. To paraphrase Nathan Rosenberg about
science (Rosenberg 1994, 143), the
public domain is an immense pool to which small annual increments from the
private domain are made at the frontier. The true significance of the
public domain is diminished, rather than enhanced, by extreme emphasis on the
importance of only the most recent increments to that pool.
In this regard there
has been an observable lack of interest in the Anglosphere legal tradition
about common property such as the public domain over the last three hundred years. Carol Rose concludes questions of private not
public property have been the focus of attention (C. Rose 2004). In
recent decades, however, ecology has exposed the tragedy of the public commons of
the air, water, oceans and biosphere leading, in turn, to new law. The public domain too is a public commons but
one unlike any other. The more it is
used the bigger it grows; your taking does not decrease my share; or, paraphrasing
Isaac Newton’s famous aphorism: “We all stand on the shoulders of giants”.
There may, however, be
a premonition of an Anglosphere concept of the public domain implicit in the
titles of the first U.S. Copyright Act
of 1790 (noted above) and the 1710 Statute
of Queen Anne or more formally,
An Act for the
Encouragement of Learning, by Vesting the Copies of Printed Books in the
Authors or Purchasers of such Copies, during the Times therein mentioned.
The key word in both is ‘learning’. Copyright is by statutory precedent to be judged
by its contribution to learning.
Canada is, however, not just bi-cultural
(English/French) but also multicultural hosting millions of people from other cultural,
linguistic and legal traditions – Arabic, Asian, African, Caribbean, European, Hindu, Latin American, et
al. Furthermore, Canada has not two but three founding
peoples – English, French and peoples of the First Nations, i.e., its
aboriginal peoples with their own varying linguistic and cultural traditions,
as well as the Metis peoples of mixed aboriginal and
European descent.
Anglosphere
copyright and Civil Code author’s rights are both based on the ‘Person’ –
natural or legal; many other traditions are not. The Fourth World of ‘aboriginal’, 'indigenous’ or ‘native’ peoples has a
concept of collective or communal intellectual property existing in perpetuity,
i.e. not limited to the life of an individual creator plus some
arbitrary number of years after death. To tribal peoples, a song, story or icon
does not belong to an individual but to the collective. Rights are, however, often exercised by only
one individual in each generation, sometimes through matrilineal descent.
Unlike
the Third
World,
aboriginal nations do not constitute ‘Nation-States’. They are therefore seldom represented on the
international stage. Beyond the 1984
draft treaty on folkloric copyright (UNESCO/WIPO 1984), UNESCO passed a Recommendation
on Safeguarding Traditional Cultures and Folklore in 1989. Another instrument was signed in 1994 by several
indigenous peoples themselves: The International Covenant on the Rights
of Indigenous Nations. This
articulates a distinctive Fourth World view of intellectual property rights including copyright. At present, however, ‘folkloric’ and ‘aboriginal
heritage rights’ have no standing in most courts of the world.
The United States, however, is an exception. It has recognized some Native American
heritage rights. The U.S. Congress thus passed
Public Law 101-601: The Native American
Graves Protection and
Repatriation Act of 1990 converting native art and artifacts into “inalienable communal property”. According to Clair Farrer
(1994) this can logically be extended to include the written and spoken word
embodied in stories and sacred tales. In Canada there is no corresponding
legislation.
In
the Second
World of the
Communist Revolution, e.g., Russia, China, Cuba, etc., all “means of
production” were the property of the State. With respect to intellectual
property, moral rights of the creator were recognized, i.e., paternity
or authorship were recognized, but economic rights were limited to a onetime
cash award or honorarium with all subsequent income flowing to the State.
In the
Third World (or ‘the South’) there are
historically varied traditions governing copyright. Early Islamic jurists, for
example, recognized a creator’s rights and offered protection against piracy (Habib 1998). However, they treated infringement as a
breach of ethics, not a criminal act of theft punishable by amputation of the
right hand. Rather, punishment took the
form of defamation of the infringer and casting shame on his tribe. Only in recent years have formal copyright
statutes been adopted in many Islamic countries, e.g., Saudi Arabia in 1989.
In
much of the Third
World,
however, another tradition exists similar to that of the First Nations or aboriginal
peoples of the Fourth World. This recognizes ‘collective’, ‘communal’
or ‘folkloric’ IPRs. This contrasts with
the Western individual-based concept. Folkloric
IPRs recognizes rights to all kinds of knowledge, ideas and innovations
produced in what can be called ‘the intellectual commons’, e.g., in
villages among farmers, in forests among tribal peoples, etc. Some of this constitutes ‘TEK’, i.e.,
traditional ecological knowledge. TEK has
been infringed by Western-based corporations in a number of countries including
India (Shiva 1993). As a
multicultural country Canada hosts all these different cultural
traditions. None, however, have received legal standing except Anglosphere
copyright and, to a lesser extent, French author’s rights.
Economic
Significance
IPRs including
copyright are the legal foundation for the industrial organization of the
knowledge-based economy. They constitute
what Harold Innis calls the staple of such an economy. Innis is arguably
the founder of the only indigenous school of Canadian economics
based on his ‘staple theory’. He studied
Canada’s development - from cod to fur to timber to
wheat. Each staple, according to Innis, engenders a distinctive patterning to the
economy. Near the end of his career he
moved on to study ‘communications’ and its matrix concluding, in effect, that
it is the ultimate staple commodity (Innis 1950,
1951).
A knowledge-based
economy is different in a number of ways from the traditional Standard Model of
market economics in which manufactured goods are the staple. First, ideally in a manufacturing economy
a consumer acquires all benefits of a good at market price while producers
recover all costs including the opportunity cost of entrepreneurship. In theory, there are no externalities,
e.g., there is no pollution. In such an economy there is, theoretically, no
role for government. In a
knowledge-based economy, however, creation of intellectual property rights by
the State is necessary before a
market can exist, i.e., no
government, no knowledge-based economy.
In the Standard
Model, IPRs are justified by market failure, i.e., when market price does not capture all benefits and all costs
of production, e.g., pollution
costs. These are called external costs
and benefits, i.e., external to
market price. IPRs, in this view, are
created by the State as a protection of, and incentive to, the production of
new knowledge which otherwise could be used freely by others (the so-called
free-rider problem). In return, the
State expects creators to make new knowledge available and that a market will
be created in which such knowledge can be bought and sold. But while the State wishes to encourage
creativity, it does not want to foster harmful market power. Accordingly, it builds in limitations to the
rights granted to creators. Such
limitations embrace both Time and Space.
They are granted, assuming full disclosure of such new knowledge: only
for a fixed period of time, i.e.,
either a specified number of years and/or the life of the creator plus a fixed
number of years; and, only for the fixation of new knowledge in material form,
i.e., it is not ideas but rather their
fixation in material form that receives protection.
Eventually, however,
all intellectual property (all knowledge) enters the public domain where it may
be used by anyone without charge or limitation.
Even while IPRs are in force, however, there are exceptions such as
'free use', ‘fair use’ or ‘fair dealing’ under copyright.
Similarly, national statutes and international conventions permit
certain types of research using patented products and processes. And, governments retain authority to waive
all IPRs in “situations of national emergency or other circumstances of extreme
urgency” (WTO/TRIPS 1994, Article 31b), e.g.,
following the anthrax terrorist attacks in 2001 the U.S. government threatened
to revoke Bayer’s pharmaceutical patent on the drug Cipro
(BBC News October 24, 2001).
Second, the average cost curve in a knowledge-based economy
is not the classical ‘U’ shape of manufacturing but rather it is ‘L’
shaped. Suppose that the first unit of
Windows VISTA cost $500 million to develop but the second and all subsequent
units cost a $1.99. This highlights the
economic significance of copyright and IPRs.
Without State-sponsored and enforced IPRs the enormous initial
investment required for many innovations would be unprofitable. Arguably, however, the same holds for the individual
artist/creator. At the extreme, there is Van Gogh, the epitome of the mad starving artist. He cut off his ear and sent it to his girl
friend; spent much of his life in an insane asylum; and, in return, he gave the
world sunflowers and starry nights for only $1.99 at the local dollar
store.
Third, fixing expression in a new matrix, e.g., DVDs, creates a new type of work
in which copyright may subsist. It may
also generate an entirely new ‘techno-economic regime’ involving a web of
related installations and services (David 1990). In this regard, the printing press was the
first engine of mass production. With
Gutenberg’s ‘moveable type’ printing press in 1456 C.E., once a work was
‘fixed’ in type, copies became cheaper and cheaper as the costs of a work and
typesetting were spread over a larger and larger print run – the principle of
mass production. It also gave rise,
through progressive division and specialization of labour, to a network of new
industrial activities and skills like publishing, copy editing, bookstores,
newspapers, print advertising, etc. In this sense, a new matrix acts like
what economist Paul David (1990) calls “a general purpose engine’ or I call a
general purpose tool (Chartrand 2006).
These tend to generate “network externality effects of various kinds, and so make issues of compatibility standardization
important for business strategy and public policy” (David 1990, 356). This is why so much is riding on the current
industrial battle about high definition DVDs, i.e., Sony’s Blu-ray versus Toshiba’s HD-DVD. Like the previous Betamax/VHS
battle which matrix is finally adopted as the ‘standard’ will have a
significant impact on consumers but especially on the competitors themselves.
It is not, however,
just the matrix or medium that generates network effects. The expression or message itself can generate
‘spin-offs’. Consider a literary work, e.g., a short story, which becomes a
play through licence of its copyright. In turn, the play becomes a film which, in
turn, is spun off into posters, toys, T-shirts, a soundtrack and video games. The film and the soundtrack are broadcast on television
and radio. Eventually a book is made
about making the movie, and then a sequel is produced. All flow from the initial work.
Fourth, copyright (and other Anglosphere IPRs) is rooted in
precedent, not principle and reason. The
result is:
the complex body of law, judicial interpretation, and
administrative practice that one has to grapple with in the area of
intellectual property rights has not been created by any rational, consistent,
social welfare-maximizing public agency. (David 1992)
Paul David characterizes the existing Anglosphere
IPR regime as ‘a Panda’s thumb’, i.e.,
“a striking example of evolutionary improvisation yielding an appendage that is
inelegant yet serviceable” (David 1992).
Fifth, another economic implication of the Act concerns
employment in a knowledge-based economy.
Under the existing Act, copyright and moral rights belong to the
employer, not the employee, similarly under Crown copyright. Under the Civil Code, an employee retains
moral rights over his or her work and may even enjoy some ‘neighbouring
rights’.
While the
traditional manufacturing economy boasted life-long employment, the
knowledge-based economy is increasingly characterized by contract work and
self-employment. The pervasive use in
the Anglosphere of blanket or all rights licences
extinguishes all future claims of the creator.
If such trends continue, it can be expected that income distribution for
contract and self-employed knowledge workers will increasing look like that of
self-employed artists and entertainers who are second only to pensioners as an
income class recognized by Revenue Canada (Chartrand 1990). Furthermore, their income distribution is not
a pyramid with a broad base, wide middle and a peak. Rather it is an obelisk with a huge base of
poor ‘starving artists’, a thin column of middle class survivors and a tiny peak
earning enormous sums, e.g., Pavoratti. This
could be the future of the knowledge-based economy - no middle class.
Sixth, another economic implication of the Act and all
State-sponsored IPRs is their predatory rather than defensive use. This includes ‘patent wars’ and ‘copyright
misuse’. In the case of patents, some
corporations spend enormous sums of money on research projects that fail for
one reason or another. Nonetheless,
everything that can be patented is patented.
These patents may be retained or sold to a patent holding company of one
form or another. If a rival or
competitor emerges who subsequently succeeds in making the technology work then
they may be charged with patent infringement.
Whether valid or not the rival faces enormous legal costs or settling
out of court. Both ways, competition is
restrained and innovation inhibited.
Copyright misuse is
a relatively new legal concept that emerged in the United States with
Lasercomb America v.
Reynolds in 1990. The concept is
based on the more developed doctrine of patent misuse. Copyright misuse occurs when a copyright
owner, through a license for example, stops someone from making or using
something that competes with the copyrighted work but does not involve use of
the original itself. The leading case in
the U.S. is the 2003 Video
Pipeline, Inc. v. Buena Vista Home Entertainment. While not successful:
The defense of copyright misuse was raised … because
Disney licensed its movie trailers subject to license terms that prohibit the
licensees from using the movie trailers in a way that is “derogatory to or
critical of the entertainment industry or of” Disney. That is, Disney uses the exclusive rights conferred
upon it by the Copyright Act, not only to obtain a return for its creative
efforts (which is consistent with the purposes of copyright protection), but
also to suppress criticism (which is contrary to the purposes of copyright
protection). (Tech Law Journal Daily E-Mail Alert,
August 27, 2003)
As will be seen below, copyright misuse by repressing
‘free speech’ represents an existential threat to a 21st century information
democracy taking copyright back to its origins as censorship of the public domain.
Seventh, finally and ironically, an alternative
economic model more consonant with the contemporary knowledge-based economy was
proposed just before Adam Smith’s The
Wealth of Nations made manufacturing king of economics in 1776. The alternative was proposed by the
pre-revolutionary French Physiocrats who gave us the term ‘economist’. Behind
the Gallic façade of laissez faire
and laissez passer, there was a deeper
policy implication never realized because of the French Revolution (Samuels
1962, 159). The Physiocrats wanted to
reach below the surface of the marketplace to the legal foundations of
capitalism (Commons 1924). For the
Physiocrats, “the public interest is manifest in the continuing modification or
reconstitution of the bundle of rights that comprise private property at any
given time” (Samuels 1962, 161). By
changing the bundle of rights that is copyright or patents, trademarks and
industrial designs, or by creating new ones, the State creates entrepreneurial opportunities
in a laissez faire, laissez passer knowledge-based economy
(OECD 1996). This legal strategy is a
critical compliment to what the OECD calls the ‘National Innovation System’
(OECD 1997). Three examples will demonstrate
– computer software, copyright collectives and national treatment.
First, until S.C. 1988, c. 15 (1980 in the U.S.) copyright was available only for human-readable ‘works
of art’. Since then Microsoft has become
one of the largest and most profitable corporations in the world. Its foundation is copyright in the Windows
operating program. Computer software,
however, is the only work that crosses the copyright/patent barrier, i.e., there are now both software
copyrights and patents. The difference in term is striking – in Canada 20 years for a patent and 50 for a corporate
copyright. In the U.S. it is 20 years versus 70. This suggests software is a sui generis work
deserving its own distinct intellectual property classification rather than
traditional protection.
Such reconsideration
is also appropriate for another reason. The
distinction between ‘machine readable’ and ‘human readable’ codified knowledge
fuelled the 1970s debate about software copyright. Recognition in 1988 was a break with a long
legal tradition restricting copyright to ‘artistic works’, i.e., works carrying semiotic meaning from one human mind to
another. A computer program, while
codified and fixed in a communications medium, is intended to be decoded by a
machine not by a human mind. It is
intended to manipulate the flow of electrons in a circuit. In turn, such circuits may activate other
machines and/or machine parts, e.g.,
industrial robots in steel mills, auto plants and fabricating industries. Similarly, genomics programming is also codified
and fixed in a communications medium but intended to be decoded by machines and
molecules, not by a human mind. It is
intended to manipulate the chemical bonds of atoms and molecules to analyze or
synthesize biological compounds and living organisms with intended or designed
characteristics. Software – computer and genomic - constitutes a
form of ‘soft-tooled’ rather than ‘codified’ knowledge (Chartrand 2006).
Second, introduction of new rights in S.C. 1988, c. 15
and S.C. 1997 c. 24 was followed by formation of many new collective societies
to receive and distribute royalties to creators/copyright proprietors as well
as to monitor infringement. The result as
revealed in a web survey shows that there are 6 such societies in the U.K., 10 in the U.S. and 35 in Canada (Chartrand 2003).
Third, public sector support for the production of
other goods & services such as cars is subject to harmonization under the
rules of the WTO. Intellectual property
rights, however, especially copyright, are subject only to ‘national treatment’. This means Canada must extend to foreign authors and copyright
owners the same rights as granted to Canadian nationals. These rights, however, need not and are generally
not the same between countries. For
example, the term of copyright in Canada is life of the artist plus fifty years. In the U.S., it is life of the artist plus seventy
years. This means that the work of an
American artist will enter the Canadian public domain twenty-five years earlier
than in the U.S. In turn
this means, for example, that a web-based entrepreneur could post and sell such
work in Canada and the
U.S. without infringing copyright in Canada. In a
sense this would parallel what the U.S. did to Canada in the 19th century.
Legal
Significance
The Canadian Copyright Act is a work in
progress: governments change, technology changes and the Act changes and
evolves. Beginning with S.C. 1988, c. 15,
however, the Government of Canada began a planned three phase process to
modernize the Act. Phase II was
completed with S.C. 1997 c. 24. Arguably
Bill C-60 2005 was a step towards completing Phase III. With the defeat of the last government,
however, the Bill died on the order paper.
It is unclear when and if the new government will re-introduce the Bill
or propose another or simply wait.
In the interim the
existing Act will continue to be tested in the Courts. This exposes another critical facet of the Anglosphere
copyright tradition. It is both
statutory law enacted by a legislature and case law determined by judges. In this regard, the most important judicial
precedent in the development of copyright (and intangible property like ‘good
will’) was a dissenting opinion in the 1769 case of Millar v. Taylor (Commons 1924). In it Justice Yates explained why
ideas are not protected. Drawing on the Institutes of Justinian
(one of the sources of the Civil Code), he observed that ideas are not the
object of property rights because they are like wild animals or ferae
naturae that once set free belong to no one and everyone at the same time, i.e.,
they are in the public domain. It is only their specific expression fixed
in material form – commonly known as a work – that qualifies for protection
(Sedgwick 1879).
Precedents set in
different Anglosphere jurisdictions, e.g.,
Australia, Canada, the U.K., the U.S., etc.,
can and do spill over, from time to time, into the courts and legislatures of
other jurisdictions. Thus genetic
patents in the U.S. emerged from a 1980 Supreme Court decision in Diamond v Chakrabarty
that reinterpreted existing law, i.e., there
was no change in the statute.
Similarly, software patents in the U.S. emerged from a 1981 Supreme Court decision in
Diamond v. Diehr. Arguably, these U.S. decisions set the stage for changes in Canadian
legislation. Similarly, the U.S. Digital
Millennium Copyright Act of 2000 may have served as a model and/or a
warning for provisions proposed in Bill C-60, 2005. Of course, the growing body of Canadian IPR
case law may also set precedents for other jurisdictions including the U.S., e.g.,
the Supreme Court of Canada’s rejection of a patent for the ‘Harvard mouse’.
Another
characteristic of Anglosphere Common Law is use of ‘legal fictions’. Thus a root tension within the
Canadian Copyright Act centres on the
Common Law fiction of ‘corporate legal personality’. A
natural person is a living human being; a legal person is a body
corporate. The vast bulk of productive
assets are owned by fictitious legal persons such as corporations, companies, sociétés, Gesellschaften. Such persons are birthed under incorporation
statutes that allow them to engage in a wide variety of profit making and
charitable activities. In the
Anglosphere tradition, however, legal and natural persons increasingly enjoy
the same rights (Nace 2005) while under Civil Code they
enjoy different rights.
It is with respect
to knowledge that this difference is most apparent. Civil Code creator’s rights are justified
because the work of a natural person bears the “imprint of personality” that a
body corporate cannot possess (Geller 1994).
Such rights are intended to reward creative individuals for their
contribution to our collective knowledge, to our culture. Argument about this imprint has fueled
ongoing controversy between the United States and the European Union,
especially France, over extending to American media corporations doing business
in Europe rights restricted by Civil Code to the Natural Person, i.e., imprescriptible rights.
Following John Dewey’s
reasoning (1926) that a ‘corporate legal personality’ is anything the law says
it is, so too is copyright. He also
reasons, however, that when the law looks outside itself for insight, about
questions such as corporate legal personality, the result can be unfortunate
because “the human mind tends toward fusion rather than discrimination, and the
result is confusion” (Dewey 1926, 670).
In copyright, the law looks Janus-like two
ways at once: towards copyright as trade regulation of a State sponsored
monopoly and towards the natural rights of the creator. This is captured in the title of Part I of
the Act: Copyright and Moral Rights in
Works.
The tension between
commerce and culture exists throughout the Anglosphere and to a lesser extent
in Civil Code countries as well. In
effect, there has been confusion between the natural rights of creators and
trade regulation. It is, however, only a
question of degree. Arguably, the U.S. is at one extreme. Thus in order to accede to the Berne
Convention, Congress in 1989 took steps towards recognizing moral rights, e.g., the
Visual Artists Protection Act of 1990 which eventually became
Section 106A of the U.S. Copyright Act.
However, rights of paternity and integrity of one’s work is available
only to artists of ‘recognized’ reputation.
Recognized by whom? By the Courts! Similarly, the Architectural Works Copyright Protection Act, Pub. L. 101-650 was
passed in 1990. Its moral rights
provisions, however, are so weak that it has not been incorporated into the U.S.
Act. It is, to my mind, an open question whether
the United
States has
in fact fulfilled its obligations under the Berne Convention.
At the other extreme
is France where arguably culture trumps commerce. This is perhaps most evident in the ‘auteur’
theory of filmmaking which arguably inhibited the commerce success of French
filmmaking vis-à-vis Hollywood. In the
Anglosphere, the owner of the ‘print’ (or negative in the case of a
photograph) is the initial copyright owner.
In France, the author of a motion picture is the director. Imperscriptible moral rights belong to the
director. Accordingly, there can never
be a ‘colourization’ controversy in France as there is in the United States. The
author/director has the final legal yes or no.
In France there are also many ‘neighbouring rights’
existing outside the principle Act.
These are intended to reward the individual creator, not the corporate
bottom-line. For example, there is a
right of following sales or droite de suite in
the visual arts. A percentage of the
resale value of an artwork, painting, sculpture, etc., is returned to the artist
each time it is re-sold. This, like the Public Lending Right, is
an imprescriptible. It should be noted, however, that the State of
California has instituted a right of following sales for
resident artists. ‘Neighbouring rights’ offer,
as will be seen, a compliment to copyright in development of a distinctive intellectual
property rights regime at the national and sub-national level.
So in the emerging
knowledge-based economy, what shall it be?
Commerce or culture? Profit or learning? The natural or the legal
person? The
private or public domain? What
is the appropriate balance? Who decides
and how are questions of growing political significance to a 21st century information
democracy.
Political
Significance
The Act has
significance for Canadian political life at four levels: international,
national, provincial and constitutional.
In brief, at the international level it plays a role in maintaining and extending
Canadian cultural sovereignty. Nationally,
it recognizes the distinctive contribution of French Canada to Confederation
while failing to recognize Aboriginal or Native Heritage Rights and ignoring the
growing power and concentration of copyright proprietors, i.e., ‘the media’. At the
provincial level neighbouring rights,
i.e., those created outside the Act, can be tailored to foster the
‘creativity haven’ of the 21st century. Constitutionally,
the Act represents a clash between precedent and principle, specifically
between the legal fiction of ‘the Crown’ and the Natural Person of the 18th
century Republican Revolution. I will
outline each in turn.
(i) International: Pursuit
of ‘Cultural Sovereignty’
The term ‘cultural
sovereignty’ emerged from the French in the 1970s as Quebec independence dawned as the overarching existential
Canadian political question of the day. Like
many French public policy concepts it migrated to Ottawa and was absorbed into the English-Canadian public
policy lexicon. Cultural sovereignty today,
however, involves the struggle to be heard at home and abroad above the booming
voice of the American entertainment industry that penetrates the cultural
marketplace of every nation on earth.
The one remaining superpower is also a global cultural colossus spanning
East, West, North and South. Fuelled in
part by the peculiar pricing methods of the entertainment industry, i.e., a rate per viewer rather than the
production cost of the work itself, American entertainment programming essentially
‘breaks even’ in its domestic market and then earns profits from a global
audience. In fact, India is the only other Nation-State with a domestic
market large enough to support a fully developed ‘world-class’ film industry. China is, of course, another question due to political
Leninism continuing after economic Marxism was abandoned in favour of the
Market. The relatively vibrant Hong Kong film industry, however, suggests what might
happen if Leninism was abandoned on the mainland too. In this regard, it is important to remember
that the three largest Nation-States by population are: China, India and the United States, in that order.
As dollars go to
‘American’ programming, however, they flow out of the country leaving the domestic
arts industry poorer financially and arguably culturally. Local production cannot, due to limited
audience size, afford ‘world-class’ standards, at least in the media and
performing arts, i.e., the ‘collective’ arts of film, sound
recording, live stage and television. In
the literary and visual arts, i.e.,
the ‘solitary’ arts, however, world class standards are set by individual
creators such as Margaret Atwood and Robertson Davies and the economics of
production are less inhibiting to local competition. In the solitary arts it is more a question of
talent than of budget.
The battle for
cultural sovereignty is fought on several fronts. First, there is the diplomatic front where
Canada, France and Sweden, among others, are pressing the WTO to maintain
and extend GATT (General Agreement on Tariffs & Trade) exemptions of
‘cultural goods and services’ from free trade restrictions. Arguably, success is at hand:
On 20 October 2005, the General Conference of the United Nations
Educational, Scientific and Cultural Organization (UNESCO) approved the Convention on the Protection and Promotion
of the Diversity of Cultural Expressions.
The Convention, a product of years of intensive negotiation, was
sponsored by both Canada and France. The
Government of Quebec enthusiastically supported Canada’s efforts.
The Convention received widespread support: 148 countries voted in
favour. The United States and Israel voted against, and Australia, Honduras, Liberia and Nicaragua abstained. (Carnaghan
2006)
Second is the economic front where again Canada, France,
Sweden and many other countries have created a web of international film and
television co-production agreements to generate the high production standards
demanded by audiences especially in the American marketplace. To the degree such works are ‘cultural
clones’, i.e., intended to seem ‘American’ then to that degree the
objective is commercial, not cultural. The U.S. government has understandably complained that the
distinction is not being respected by many of its competitors for the American
entertainment dollar.
In Europe, individual member-states and the European Union are actively engaged in manipulating
the regulatory environment to ‘engineer’ a financially viable entertainment
arts industry through control of the electromagnetic spectrum and other
communications media. The European Union
itself is also offering subsidies and other support to explicitly help domestic
media companies compete against Hollywood and Silicon Valley (Chartrand
2002).
Canada, of course,
and some of its provinces, has been a pioneer in developing ‘Hollywood North’,
i.e., competing for U.S. film and TV
production locations through special employment tax credits and other subsidies
(Acheson, K. & Maule, C. 1994).
Australia & New Zealand have similarly been active in supporting their ‘cultural
industries’.
Eire, or the Republic of Ireland, has arguably gone furthest by exempting all copyright income
earned world-wide by a resident natural person from income tax.
The third
front in the fight for cultural sovereignty is legal, specifically the
manipulation of intellectual property rights including copyright. As previously noted, Nation-States can shape
their IPR regimes to enhance competitiveness constrained only by ‘national
treatment’. In Canada, the Act is diverging more and more from the
traditional Anglosphere model, e.g.,
in the U.S. It is
adopting more and more provisions from the European Civil Code tradition, e.g., moral rights and levies on blank
recording media. The French fact is
asserting itself through the Act. At the
same time, however, the Act struggles to maintain its Anglosphere ‘industrial’ character
requiring all rights to be subject to assignment or waiver by creators to copyright
proprietors. There are no ‘imprescriptibles’ in the
Act. This is a unique Canadian solution
which may, or may not, stand the test of time and logic. Arguably, it is a Panda’s Thumb at best. It may simply be, however, that it is the
fruit of a poisonous tree that should be cut back and restricted to trade
regulation while rewarding creators through ‘neighbouring rights’ tailored to
Canadian conditions.
(ii)
National: Quebec, the First Nations & Media Concentration
The Canadian Copyright Act has significance
for national political life by: (i) recognizing the
distinctive contribution of French Canada to Confederation; (ii) failing to
recognize Aboriginal or Native Heritage Rights; and, (iii) failing to recognize
the growing power and concentration of copyright proprietors or what is
commonly called ‘the media’. I will review each in turn.
First, the ‘two solitudes’ of English & French
Canada is a central existential fact of being Canadian. Increasing expressed as ‘the French fact’ it is,
among federal statutes, arguably most evident in the Act. Moral rights and other Civil Code provisions such
as Public Exhibition Rights have thus been introduced based upon the French
experience. Neighbouring rights such as Public
Lending Rights and Status of the Artist legislation reflect the same source. This tradition places principle and culture ahead
of precedent and commerce.
Introduction of such
‘French’ provisions into the Act and related neighbouring rights is also arguably
a function of the global French language marketplace. While serving as Research Director for the
Canada Council from the late 1970s until 1989 I heard accounts of many talented
French-speaking artists and entertainers leaving Canada for France to enjoy the
significantly better rights and remuneration available under the Civil
Code. The exodus may, or may not, have taken
some of the wind out of the sails of Quebec separatism after 1976. Those who stayed in Canada found it necessary,
in many cases, to enter the Anglosphere marketplace where some such as Celine Dion and Circle de Soleil have enjoyed spectacular success. Nonetheless, today, the English-speaking
creative community also lobbies for moral rights and the status of the
artist, all pioneered in Quebec but based more generally on the ‘French
Canadian fact’.
Second, beyond the ‘two solitudes’ there is the growing
existential question of land claims by the First Nations peoples. Past failure to honour
treaty obligations or to make treaties with the native peoples, e.g., in British Columbia, has rebounded
on Canada, its provinces and citizens through court decision and the rule of
law. Implicit is the issue of Native or
Aboriginal Heritage Rights, i.e., a
claim not to land but to recognition and ownership of the products of their own
varied cultures as ‘nations’. Civil Code
and Common Law ‘copyright’ differ with respect to temporary rights granted to a
natural and/or legal person after which all work enters the public domain where
it is free for all. Among the First
Nations, however, the distinction is between temporary individual rights and collective
perpetual rights flowing from an ‘oral’ not written tradition.
Among the First
Nations oral communication remains the dominant means of inter-generational and
intra-generational knowledge transfer as song and story, pattern and picture. Sometimes only one in each generation of a
family, tribe or nation is allowed to ‘pass on’ the tradition – as long as the
rivers flow and the sun shines – never entering the public domain. When it does enter the public domain the
secret is revealed, the magic lost, the line ended, the tradition possibly extinct. Sometimes, however, others may make
money in the process.
The question of
“appropriation” has arisen in the creative community regarding the telling of
tales and creation of works based on Fourth World cultures generally. On the one hand, some recognize the ownership
of Fourth World peoples of their own culture.
On the other hand, some believe if artists restrict themselves to their
own culture all of humanity will be deprived.
An extreme example is the alleged case of the thunderbird motif of the
Kwakiutl people of west coast Canada. I say ‘alleged’ because I read about it
in a 1980s Globe & Mail news article
which I failed to reference at the time and have not since tracked down. True or not, it illustrates a problem called
“cultural vampirism”.
Kwakiutl women
knitted woolen sweaters in their villages using the thunderbird design for
decades if not generations. A pair of
Japanese businessmen saw the sweaters on a tour in the mid-80s and promptly
mass produced them in Asia. Apparently
over $100 million in sales were made.
Not a penny returned to the Kwakiutl people. Such images are in the “public domain”
according to First World intellectual property rights – Civil Code or Common
Law; the Kwakiutl have no standing in court to seek damages and compensation
for the appropriation of their cultural property for the profit of others.
The question is ‘legal
standing’ in the courts, e.g., as
created by American
Public Law 101-601: The Native
American Graves Protection and Repatriation Act of 1990
(Farrer 1994) This statute and the resulting ‘de-accessioning’
of works made by First Nations peoples from museums around the world reflects
the success of the Zuni people of the southwest United States in suing a museum.
The museum sought to preserve sacred sculptures for their beauty but, for
religious reasons, they could not be preserved but rather had to be allowed to dissolve
into their elements. A U.S. court found
for the Zuni. Whether or not Native
Heritage Rights should be recognized in the Canadian Copyright Act, e.g.,
by exemption, or in separate ‘neighbouring rights’ legislation is an open
question. Nonetheless, recognition of
Native Heritage Rights and ‘legal standing’ for the First Nations peoples should
be, in my opinion, part of any final resolution of the existential land claims of
the First Nations peoples of Canada.
Third, since the 1969 Royal Commission on Newspapers the question of press ownership has
been publicly debated and studied in Canada.
Globally some five major conglomerate firms dominate the arts,
entertainment and news industries. Their
legal foundation is copyright.
Arguably, Adam
Smith’s alarm about ‘political economy’, i.e.,
with economic profit translating into political power and political power
translating into profit, is being recycled in modern times. The relationship between politics and profit
is a central theme of the knowledge-based economy. In the crudest terms, a knowledge-based
economy means the monetarization of information. Political power writes the intellectual
property statutes defining knowledge as property. Private proprietors strive to maximize profit
by re-structuring the business environment through such statutes.
According to Jessica
Litman in the United States this has got to the point
that the “copyright industries… work out the details of the copyright law among
themselves, before passing the finished product on to a compliant Congress for
enactment” (Litman 1996). The incestuous relationship between the
legislative process and copyright proprietors recently surfaced in California
where:
… California's attorney general, Bill Lockyer,
floated a letter calling peer-to-peer file-sharing software - long the bane of
the entertainment industry's interests - “a dangerous product.”
But a peek at the document's properties revealed that someone dubbed “stevensonv” had a hand in its creation.
Vans Stevenson, a
senior vice president with the Motion Picture Association of America, said
later that he had offered input on the document but had not written it. (Zeller 2005)
This creates a
political economic dilemma for a 21st century information democracy. Politicians need the media especially
favourable media coverage plus campaign donations to get elected. Media conglomerates, unlike all other donors,
offer both. In turn, the conglomerates
need politicians to pass legislation increasing profitability, limiting
competition and generally favouring their
interests. Hand meets glove. Traditionally, the answer has been to ‘break
up’ such media conglomerates based on ownership restrictions, e.g., can the owner of the only
newspaper in town also be the owner of the only local private television
station? Arguably, a similar effect can
be achieved by changing copyright by recognizing imprescriptible rights of the
creator. Media concentration is
potentially an existential political threat to an information democracy
especially when copyright misuse is factored into the equation of power.
(iii) Provincial: Neighbouring Rights
While copyright is
constitutionally a federal responsibility, neighbouring rights are not. The ability of a Province to legislate
rights for their creative residents is not inhibited. In the United States, for example, the State
of California has legislated rights of following sales for its resident visual
artists. The State of New York
attempted but failed to introduce similar legislation. To the degree that such neighbouring rights
are restricted to resident natural persons they are not ‘subsidies’ in terms of
the WTO. They are, nonetheless, a
potentially significant instrument in enhancing the competitiveness of both
Canada and/or its provinces in a global knowledge-based economy. Creative talent is the spark plug of such an
economy. Such new rights could foster a
‘creativity haven’ where talent wants to live and work. In this regard, Eire (the Republic of Ireland)
has effectively used exemption of copyright income earned by natural
persons. This is part of a successful national industrial
strategy that has created ‘the Celtic Tiger’ of the EU.
There is a wide spectrum
of potential ‘neighbouring rights’ that could be introduced at the provincial
level. These include:
·
Aboriginal Heritage
Rights granting standing in provincial courts to aboriginal peoples with
respect to alleged appropriation of their intellectual property;
·
Public Exhibition
Rights to compensate public galleries and museums for administration and
payment to resident creators under the federal statute;
·
Public Lending Rights
for works of resident creators borrowed from public libraries including media
works. Provincial rights could be
coordinated with the national Public Lending Rights Commission housed in the
Canada Council;
·
Rights of Following
Sale for works of resident creators in all disciplines including the media arts.
A work sold early in a career for a low
price would thus generate ongoing income to the creator on subsequent re-sale;
·
Status of the Artist
legislation strengthening collective and individual bargaining rights of
creators vis-à-vis corporate copyright
proprietors; and,
·
Tax exemption of
copyright income earned by resident creators – basement inventors, poets,
playwrights, et al.
(iv) Constitutional:
The Natural Person and the Crown
The concept of the ‘natural
person’ and ‘natural rights’ emerged out of the European Enlightenment and the
18th century Republican Revolution that overthrew an ancient regime of
subordination by birth. This led to
popular democracy and the principle of one person, one vote.
Constitutional
expression of democracy in a republic, however, is radically different than in
a constitutional monarchy such as Canada.
In a republic, authority is rooted in the citizen or ‘We, the People’;
in a constitutional monarchy, it is rooted in the legal fiction of ‘the
Crown’. Thus a statute passed by the Parliament
of Canada becomes law only with ‘Royal Assent’ including the Canadian Copyright Act. In the Act itself the clash between these two
constitutional principles – the Natural Person and the Crown - is growing. Through principle, the Act increasingly recognizes
the natural rights of the author/creator.
Through precedent, however, the Act links us back to Crown grants of
industrial privilege (e.g., increasing
media concentration), censorship of the public domain (e.g., ‘Son of Sam’ and ‘Anti-Hate’ legislation) and subordination
of the author/creator to bodies corporate, i.e.,
to copyright proprietors. Before
exploring historical and contemporary expressions of this clash, it is important
to more clearly define the nature of ‘the Crown’.
Unlike the United
States with its constitutional separation of powers, a central principle of
constitutional monarchy is ‘the indivisibility of the Crown’. Power flows down in the name of Her Majesty,
not up from the people. Similarly, the
executive, legislative and judicial branches are all subject to, if not agents
of, Her Majesty. So too are all natural
and legal persons as well as their property.
Everything and everyone is subject to the pleasure of Her Majesty. In federal constitutional monarchies such as
Australia and Canada indivisibility also applies at the jurisdictional level,
e.g., the province of Saskatchewan in
right of Her Majesty is indivisibly linked to the Dominion of Canada in right of
Her Majesty. Of course, this is all a ‘legal fiction’.
In political terms, however,
this means that a ‘Bill of Rights’ such as the Canadian Charter of Rights and Freedoms, unlike the American First
Amendment, is subject to a ‘notwithstanding’ clause that allows a parliamentary
or legislative majority with the assent of Her Majesty’s representative to
abrogate any and all rights contained therein including freedom of the press.
While more formal than the unwritten British constitution,
these Canadian political rights are significantly less binding than those of
the U.S. Bill of Rights, Amendments 1-10 to the U.S. Constitution All three, however,
share a common historical nexus with copyright.
As previously noted
Stationers’ Copyright and patents of invention were the only monopolies to
escape dissolution under the Statute of
Monopolies during the reign of James I.
In the case of copyright,
the reason was its political usefulness in
censoring the public domain. This statute,
however, was only an opening salvo in what became a civil war between
Parliament and the Crown under James’ son, Charles I.
Arguably, the
final constitutional battle between the Crown and Parliament was “The Glorious
Revolution of 1689” when the last of the Stuart monarchs, the catholic James
II, was deposed by an Act of Parliament and replaced by his ‘protestant’
daughter Mary and her consort William of Orange. The resulting ‘Bill of Rights’ of 1689 established
free speech in Parliament which marked the beginning of a ‘free press’ in
England or what subsequently became the United Kingdom and its colonies.
In 1695 the last of the Licensing Acts lapsed. Government
control of the press was henceforth limited to post-publication libel law. Suspension further spurred development of a
free press that could publish without prior consent of the authorities. Without the
Licensing Act, however, the Stationer’s perpetual copyright also
lapsed and a rival appeared on the horizon – Scotland. While England and Scotland had been under the
same monarch since 1603 they remained separate countries with separate
legislatures and separate laws. This
meant that Stationer’s Copyright did not have force in Scotland. As long as the licensing laws were in place,
however, London booksellers could limit competition. With their expiration,
competition grew.
There were many attempts by the Stationer’s
Company to restore the old licensing system in the late 1690s and early 1700s,
but it was not until 1710 that a new copyright system came into force. In fact between 1695 and 1710, Scottish and
domestic ‘pirates’ made it increasingly difficult for London booksellers. Any Scottish pirate could take a successful
work, re-typeset it and then sell it at a much lower price with no payments for
the author, editor or promotion.
The Statute
of Queen Anne of 1710 had three objectives.
First, it was intended to prevent any future monopoly of the book trade,
i.e., freedom of the press. Second, it was intended to draw Scotland
under a common copyright law and thereby resolve the piracy controversy. Third, it was intended to encourage
production and distribution of new works.
The vehicle chosen to achieve all three objectives was the author.
Until
the Statute, the author had no economic and limited moral rights to a work
after it was sold. Generally, a work was
bought outright by a printer/bookseller/publisher for a flat one-time fee much
like an all-rights or blanket license today. No royalties flowed to the author
from subsequent sales. They did enjoy
certain ‘moral rights’ including the right not to have the text changed and the
right of attribution. Such rights,
however, were based on ethical practices of the printers’ guild, not law.
The Statute
of Queen Anne is considered the turning point in the history of copyright
because it was the first law to formally recognize an author’s rights and, more
importantly, it effectively terminated prior government censorship through
pre-publication licensing. Recognition
of an author’s rights by the Statute was, however, principally a device to
attain its primary objective, i.e., abolition of the Stationer's
monopoly (Feather 1988, 31-36). In
effect, it was a trade regulation bill and did not recognize any inalienable, unattachable,
imprescriptible or unrenounceable rights of the author (Shirata
1999).
In
the end, the Statute of Queen Anne extended the existing copyright
monopoly of the Stationer’s Company for 21 years and granted an exclusive right
for new works for fourteen years with an option to renew for the same period. Furthermore, the Statute recognized the
author as the initial copyright holder to encourage “learned men to compose and
write useful books”. Nonetheless, it
also explicitly recognized the interests of “proprietors”.
Abuse
of copyright under the Crown (and Cromwell’s Commonwealth) led Thomas Jefferson
to initially oppose any American copyright act.
Such abuse also led to the First Amendment of the U.S. Constitution
which arguably is directly related to copyright and hence to an Anglosphere
concept of the public domain (Alstyne 2004):
Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the government for a redress
of grievances.
The
historical connection is the pre-Statute Licensing Acts used to control
the press, restrict religious and political debate and censor the public
domain. Pre-publication licensing also
maintained perpetual copyright for the Stationer’s Company. In this sense, the First Amendment is a
sibling of copyright serving to define the public domain. David Lange takes this argument further
arguing that the public domain itself should be recognized as having a status
analogous to citizenship with affirmative rights. “I want the public domain,
however it may be defined, to secure these elemental aspirations which I
believe innate in human kind: to think and to imagine, to remember and
appropriate, to play and to create” (Lange 2004, 483).
Unless
the public domain as legal principle is reconciled with the public domain as
legal precedent, Lange’s vision will, however, remain unrealized. In fact, the progressive extension of the
term of copyright in the United States, now exceeding 100 years – life of the
author plus 70 years – suggests that de facto perpetual copyright has
returned. This sense is enhanced by the
ubiquitous spread of all rights or blanket licenses that extinguish a creator’s
rights in favour of corporate proprietors who continue to argue for more rights
and draconian enforcement of existing rights in order to preserve ‘the starving
artist’. Increasing media concentration and
copyright misuse adds a distinctly monopolistic flavour
to a brew that may realize Thomas Jefferson’s worst fears about copyright as a
threat to democracy.
In
Canada, as a constitutional monarchy, limitation by the Crown of copyright as a
‘natural right’ is reflected in one of the most peculiar chapters in the
history of the Canadian Copyright Act, the so-called ‘Son of Sam’ or ‘profit from authorship respecting a crime’ legislation. In 1997 Liberal Member of Parliament for
Scarborough-West, Mr. Tom Wappel, introduced
two private member’s bills both entitled An Act to amend the Criminal Code
and the Copyright Act (Bill C-205 and Bill C-220). Both were passed by the House of Commons
but not by the Senate. Mr. Wappel proposed to extend Crown copyright under section 12
of the Act to “a person who has been convicted of an offense under the Criminal
Code” and any copyright in any work by that person based on that offense “shall
belong to Her Majesty and shall subsist for the time that the copyright would
subsist if it belonged to the convicted person”.
While
these two bills did not become law they highlight that under the Canadian
Constitution, and therefore under the Act, there can never be, with one very
important qualification, inalienable, unattachable, impresciptible and
unrenounceable rights of the author/creator.
The Crown trumps all. The
qualification, however, concerns “copyright proprietors”. Such rights could be granted to natural persons relative, not to the Crown, but to other legal
persons. In essence, one legal fiction
‘the Crown’ could, with respect to the natural rights of the author/creator,
trump another legal fiction, that of “legal corporate personality’. In the process, growing media concentration would
be mitigated by increasing the rights of all knowledge workers. Historically, such a change in bargaining
power would parallel that in the 1880s when Anglosphere governments around the
world abrogated conspiracy laws against trade unions in order to balance the
growing power of the ‘Robber Barons’. It
would also realize the eloquent words of Zechariah Chafee when he wrote:
… intellectual
property is, after all, the only absolute possession in the world... The man who brings out of nothingness some
child of his thought has rights therein which cannot belong to any other sort
of property. (Chaffee 1945)
Conclusion
In
conclusion, the
Canadian Copyright Act has significance far beyond music downloads and
photocopying. In fact the Act, and IPRs in general, are too important to be left to
industry and politicians. It defines who
we are and who we want to become as a creative, democratic nation.
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