Copyright and media policy
Please note that you may also be interested in my French-language blog called “culturelibre.ca“
This morning, I had the great honor of leading an undergraduate communications studies class lecture and discussion around the topic of “copyright” within the context of media policy. I recorded my session with a wrist-bound smartwatch, here are the two resulting audio files:
The last 30 minutes was devoted to open classroom conversation and I did not record this part.
The students were asked to read Sara Bannerman’s excellent article titled “Canadian Copyright: History, Change, and Potential” published in the Canadian Journal of Communication in 2011 (Vol 36 (2011) 31-49). This article presents the history of copyright media policy in Canada starting in the mid-19th century. Back then, the United-States produced unauthorized copies of published British books to support their burgeoning publishing sector.
These american copies were finding their way to the Canadian market, squeezing out opportunities for local entities to flourish and pricing authorized British copies out of the market. Bannerman doesn’t quite get into this in her article, you really have to read her excellent book at UBC Press (The struggle for Canadian copyright : imperialism to internationalism, 1842-1971). Nonetheless, I tried to position the copyright rules presented by Bannerman in the late 19th and early 20th century to some contemporary issues faced by Internet users.
Specifically, I explained that Bannerman is presenting Canada as a “middle power” (p. 31) state engaged in negotiating a multinational trade instrument. In the 19th century, Canada was still a colony, under the aegis of the British but also had to deal with the situation in the United States.
Bannerman states (p. 36),
The United States, in 1891, took measures to recognize international copyright on strictly limited terms. Instead of adopting the Berne Convention, the United States granted copyright to foreign nationals on a bilateral basis, on the condition that works be registered and printed in the United States (Boyde & Lofquist, 1991-92; United States, 1891). In this way, the United States adopted a bilateral and protectionist international copyright policy, while Canada was bound to the Berne Convention, which disallowed the types of industry protections built in to the American law.
Canada shifted its position, as exemplified during the 1910 Imperial Copyright Conference.
At the conference, whose proceedings were kept secret, the Canadian representative secured a commitment that the imperial government would negotiate, for Canada, terms that took the form of a protocol to the Berne Convention in 1914 (Protocole additionnel, 1914). This protocol eased Canadian concerns and paved the way for Canada to adhere to the Convention. Under the 1896 revision of the Berne Convention, authors from non-Union countries such as the United States could obtain copyright throughout the Berne Union by publishing their works first in a Berne country (such as Canada). This gave non-Union countries “back door” access to the rights granted by the Berne Convention without requiring said countries to join the Berne Convention. Berne Union authors (including Canadians) did not receive reciprocal protection from the United States; they faced stringent domestic manufacture provisions before they were eligible to receive copyright protection in that country (Berne Convention, 1896, Article 1, Item II; Berne Convention, 1908, Article 6). The 1914 protocol, however, allowed a country of the Union to restrict protection granted to the works of non-Union authors whose government failed to protect in an adequate manner the works of authors of the Union (Protocole additionnel, 1914). This gave Canada the flexibility of recognizing American copyright on a more reciprocal basis, a key requirement for Canadian adhesion.
During the interwar years, which were characterized by optimism about international institutions’ potential to bring about justice and peace, the Berne Convention represented for Canada a powerful international community and a forum for the expression of Canada’s newfound international personality (Hillmer & Granatstein, 2005). Canadian leaders felt that a failure to join in that Union would make Canada “an outlaw among the copyright nations of the world” (O’Hara, 1919), an “outsider in the general community of nations” (Canada, House of Commons, 1921, p. 3833), and a “non-harmonious and non-musical instrument” (Canada, House of Commons, 1931, p. 2309) within the concert of nations.
(Bannerman, p. 37)
But, again, Canada’s position shifted a few decades later.
A 1957 Royal Commission on Patents, Copyright, Trade Marks and Industrial Designs concluded that the Berne Convention represented a European approach to copyright, granting high levels of copyright and placing the rights of authors above the interests of users, consumers, and the public. The commission suggested that a more American approach—with a utilitarian view of copyright that understood copyright as serving the public interest above the interests of authors—might be more suitable to Canada as a net copyright importer— a nation of copyright consumers more than a nation of copyright exporters. (Bannerman, p, 37)
It seems that Canada is still flip-flopping:
Under CETA it appears, according to leaked documents, that the European Union is pushing for Canada to adopt a longer term of copyright protection (70 years rather than 50 years after the death of the author for standard works and other term extensions in other areas), a new resale right for art, a new distribution right, new rights for broadcasters, including a fixation right and a retransmission right, and the extension of reproduction rights to performers and broadcasters (Canada-EU, 2010). (Bannerman, p.40)
The result of this for Canadians today is the possible erosion of Canadian copyright sovereignty, the possible Americanization of Canadian copyright law via American-style digital locks provisions—without the extensive fair use safeguards of the American system, the potential unbalancing of rights and rewards, and the further unbalancing of international flows. (Bannerman, p. 43)
(For the record, these are the passages I cite in my lecture.)
Finally, here are some sources I suggest for further reading:
- I discuss an article which attemps to measure the « optimal » lenght of copyright’s duration. It is this one: Landes, William M. and Posner, Richard A., Indefinitely Renewable Copyright (August 1, 2002). U Chicago Law & Economics, Olin Working Paper No. 154. Available at SSRN: https://ssrn.com/abstract=319321 or http://dx.doi.org/10.2139/ssrn.319321 (it was published in the University of Chicago Law Review in 2003).
- I presented on the screen a few pages of a graphic novel called Tales from the public domain: Bound by Law as well as the NFB documentary Rip, a remix manifesto, by Brett
- A discussed a book about the history of copyright, of which there are many, but I think reading the original report fromt the Royal Commission of Patents, Copyright, Trade Marks and Industrial Design of 1957 is worth it.