April 16, 1962

PC

Noël Dorion (President of the Privy Council; Secretary of State of Canada)

Progressive Conservative

Hon. Noel Dorion (Secretary of Slate):

Mr. Speaker, I think that in introducing this resolution before the house, it would be appropriate for me, as the minister responsible for copyright affairs, to state the government's motives.

The universal copyright convention, copies of which have been tabled, was signed at Geneva on September 6, 1952, by 86 coun-

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Approval of Copyrights Convention tries, including Canada. Canada has not, however, ratified the convention. As a signatory, Canada has the right, under articles VIII and IX, to ratify the convention, as long as Canada is in a position, under its domestic law, to give effect to the terms of the convention-this condition being a requirement of article X. The resolution presently before the house recommends that Canada do now ratify this convention.

The convention came into being, and continues to exist, under the auspices of the United Nations Educational, Scientific and Cultural Organization. The member states as of this date-that is, the states which currently adhere, through ratification, acceptance or accession-number 39, and include the United Kingdom, the United States, France, the Federal Republic of Germany and a number of South and Central American republics.

Canada's international copyright relations presently consist of membership, dating back to 1896, in the international union for the protection of intellectual property (the Berne union), Canada being presently bound by the Rome revision (1928) thereof, and several bilateral arrangements made under the Canadian Copyright Act, with the United States, Sarawak and North Borneo. I shall refer again to the Berne union and to the arrangement with the United States. What membership in the Berne union and these several arrangements mean is that works of Canadian origin receive copyright protection in the member countries and in the countries with whom the arrangements exist, in return for reciprocate protection in Canada.

The universal copyright convention, in very general terms, assures to an author who is a national of a member state, or who first publishes in that state, national treatment in each other member state (by "national treatment" I mean such treatment as is accorded nationals of the state concerned under the domestic law of that state). The convention sets forth the types of works to which member states will guarantee protection, and stipulates the minimum periods for which such protection will be granted (i.e., the "term" of protection). The convention provides that any member state which, under its domestic law, requires certain formalities (including printing in that state, registration,

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Approval of Copyrights Convention deposit, etc.) as a condition of copyright will regard such requirements satisfied with respect to the works protected by the convention first published outside its territory and the author of which is not one of its nationals. The only condition is that a simple formality be observed, namely that all copies bear a symbol (the letter "C" in a circle) and carry the name of the copyright owner and the year of first publication of the work.

The principal advantage to Canada of ratification of this convention bears on the effect of such ratification on Canada's copyright relations with the United States, but there are certain other minor advantages. The minor advantages lie in the wider international copyright affiliations which Canada would thus bring about (particularly within the western hemisphere), resulting in the protection of Canadian works in those member states to which Canada is not already bound by treaty or arrangement (and, of course, a reciprocate obligation on the part of Canada to grant protection to the works of authors of those states or works first published therein), and, to a great extent, in the easing of requirements in those states whose domestic laws may contain more stringent demands in this respect.

The major advantage in ratification has to do with our copyright relations with the United States. In 1923 Canada issued a notice, under its act, to the effect that the United States:

-is a country which grants or has undertaken to grant either by treaty, convention, agreement or law, to citizens of Canada, the benefit of copyright on substantially the same basis as to its own citizens or copyright protection substantially equal to that conferred by the said act.

Henceforth, that country would be treated as if it were a country to which the Canadian Copyright Act extended, and the United States, in a reciprocal proclamation at the same time agreed to protect the works of Canadian authors, but such protection was to be conditional upon compliance with the requirements and formalities prescribed by the copyright laws of the United States. The United States have had, since 1891, certain printing (or "manufacturing", as they are usually called) provisions in their act, and from 1909 their law provided specifically that the owner of the copyright in a book or periodical first published outside the United States in the English language could obtain copyright protection in the United States (called ad interim protection) for five years from first publication.

However, if he imported into the United States more than 1500 copies of the work during that period, his United States copyright ceased. Canada, in 1923, amended its act by inserting therein certain manufacturing or printing clauses of its own, presumably to compensate for those in the United States law, but, due to the limitations in taking such action which were represented by Canada's membership in the Berne union, the Canadian clauses were operative only at the discretion of the minister and were, in reality, compulsory licensing provisions which did not take away the copyright (as the United States clauses did), but only required the copyright owner to permit publication, under certain circumstances, by others, on application and on payment of royalties. The United States manufacturing clause, on the other hand, is a mandatory requirement of the U.S. law, abolishes copyright protection on non-compliance, and has resulted in compelling the owners of copyright works in English to print them in the United States as a condition of enjoying copyright protection in that country.

The effect of these requirements of United States law on the Canadian printing and publishing industry is readily apparent. Any Canadian author writing in the English language, who anticipates an appreciable sale of his work in the United States must have his work published in that country to assure his copyright protection there. He could, of course, publish the work simultaneously in Canada and in the United States, but such action is not economically practicable. The Canadian printing and publishing industry is thus denied this business. Canadian authors, for their part, must compete with their American fellows for the attention and favour of American publishers, may be required to accept contracts on less favourable terms than they might secure from a rejuvenated Canadian publishing industry, and are in some danger of losing their identity as Canadian writers. In the interests, therefore, of Canadian literature, of Canadian authors, and of the Canadian printing and publishing industry it is obviously essential that measures be taken to make the manufacturing clauses of the United States copyright law inoperative so far as Canadian authors are concerned.

In that respect, I would refer hon. members to the very appropriate comments made by the royal commission on publications. I will not quote them here so as to be as brief as possible.

We suggested to the United States government, some months ago, through diplomatic channels, that that government tree Canadian authors and authors first publishing in Canada from the requirements of the manufacturing clause, in return for a guarantee by Canada that we would not exercise our compulsory licensing provisions against American copyright owners. The reply was that compliance with this request on the part of the United States was not possible without amendment to the United States law, and that the way was already open to us to secure our object by ratification of the universal copyright convention.

We were already aware, of course, that ratification of the convention would solve this particular problem. This is because the United States as a member nation will no longer be able to invoke the "manufacturing clause" of its law with respect to works published in another member nation, since this is a type of formality which, under the terms of the convention, is satisfied simply by compliance with the minimum of formalities required by the convention, which I mentioned earlier.

The present United States law so provides; that is, a subsection specifies that works of the nationals of member countries, or works first published in such countries are exempt from certain provisions of the United States law-including the manufacturing requirement, and also requirements relating to deposit, mechanical rights, import prohibitions, etc.-as long as copies of the work bear the "C-in-a circle" symbol, the name of the copyright proprietor and year of first publication, in other words, comply with the convention requirement.

It may be wondered, under the circumstances, why action towards ratification of the convention has been delayed. There are various reasons. The Ilsley commission on patents, copyright and industrial designs recommend, in its report on copyright, ratification of the convention, but only after other recommendations which it made-relating particularly to the term of copyright, and also to removal of our printing clauses -should be given legislative effect by a new copyright act. I will make brief mention of this report and the activity which has taken place with respect to it. The report was tabled in 1958, and contained recommendations for a wholesale amendment of the Copyright Act. The subject of copyright 26207-1-1924

16, 1962

Approval of Copyrights Convention is an extremely involved one, as anyone who undertakes a serious investigation of it soon realizes. The recommendations of the Ilsley report on this subject, the comments made with respect to the report and on all aspects of the subject have been under very active study for over two years in my department by a committee of officials to whom the task has been assigned.

That means that the legislation we propose to introduce will not necessarily implement the conclusions contained in the Ilsley report. Of course, it is the government and not royal commission which is responsible for legislation. For the time being, I could say that we may depart from certain of the report's conclusions. At any rate, when the legislation is introduced in the house, hon. members will have every opportunity to discuss its provisions and to make their own suggestions.

Specifically with respect to the Ilsley commission's recommendation that the universal copyright convention be ratified only after the Copyright Act is amended, in accordance with the commission's recommendations, I wish to point out that, under article IV of the convention, it will not be possible to make any amendment concerning the term of copyright after the convention has been ratified. Article IV states, in part, that the term of protection for works protected under the convention shall be not less than life of the author and 25 years after his death, but if a contracting state, on the effective date of the convention in that state, has limited the term for certain classes of works to a period computed from the first publication of the works, such a state will be permitted to continue to do so. The Ilsley commission recommended a term based on publication; thus, we would have to include the term in a new copyright act before ratification could be undertaken. I do not propose to go into detail at this time with respect to the pros and cons of the Ilsley commission recommendation as to a term of 56 years from date of publication, as indeed is the case in the United States, but it is not the intention of the government to accept that recommendation at present.

We are of the view that there is no great advantage to be gained by shortening our present term of life of the author plus 50 years to bring it into line with the United States term of 56 years from publication, and

Approval of Copyrights Convention consider that any advantage to be so gained would have to be very real to justify departing from the term which has been in effect in this country for many years, or from the basis of determining such a term-i.e., life of the author-which prevails not only in Canada but in the overwhelming majority of countries granting copyright protection. We readily admit, that the vast majority of works in copyright lose most, if not all of their monetary value long before the expiration of their copyright term.

Nevertheless, for that minority of works which are of lasting cultural value we are of the opinion that both the public's and the author's interest require that the copyright protection of such works be such as to ensure to the authors such financial reward as would encourage further production.

With respect to the possible claim of unfairness arising from a longer term of protection in Canada than in the United States, a remedy would seem to lie in the adoption of a provision, possible under the conventions, under which the term of protection in Canada for non-Canadian works should never exceed that of the country of origin- rather than the adoption of a shorter term for Canadian works.

Finally, I might say that there is understood to be in the United States-one of the last (if not the last) bastions of the term from publication-a substantial body of opinion developing in favour of a longer United States term. At any rate, convinced as we are that the term should be based upon the life of the author, and that it should be one which is at least 25 years after his death (as required by the universal copyright convention), there is no need to await amendment of the copyright act before ratifying the convention.

Another fact which gave us pause was the existence of the compulsory licensing provisions in our present act. These we were at first (as the Ilsley commission apparently also was) disposed to regard as incompatible with the requirements of the convention. We are now, however, of the view that our licensing clauses affect only the "content" of copyright-that is, the extent of the protection-but do not remove copyright. Since the "content" of copyright is nowhere defined in the convention (except with respect to term and to translations), it now appears- and we have an opinion of the deputy at-

torney general to corroborate our view in this respect-that the provisions of our present act are, indeed, such as will permit our giving effect to the terms of the convention.

The way ahead to ratification at this time therefore seems clear. There are three protocols attached to the convention, and the question arises as to the ratification of these as well. The first protocol would assimilate, for purposes of the convention, stateless persons and refugees habitually residing in member states with nationals of that state; the second protocol provides for protection of the works of the United Nations, its specialized agencies and the organization of American states; the third concerns the effective date of instruments of ratification or acceptance of, or accession to, the convention. Although it may in the future be desirable that all of these protocols be ratified (as the Ilsley Commission recommends), the first two could not be implemented before our legislation is amended. The third protocol's purpose appears to be to provide a suitable procedure permitting any country to condition the entry into force of its ratification, acceptance or accession upon the United States' becoming a party to the convention, but to achieve this without saying so in the convention or protocol. Ratification of this protocol is not affected by our legislation and can do no harm, and we propose ratification of protocol three of the convention.

There is one final consideration-namely, the means by which, under our present act, the extension of protection to universal copyright convention member states can in fact be implemented. Subsection 2 of section 4 of the Copyright Act provides, in effect, that the provisions of the act may be extended to or in respect of the citizens of a non-Berne union foreign country if that foreign country has granted or undertaken to grant by treaty, convention, agreement or law, to citizens of Canada the benefit of copyright on substantially the same basis as to its own citizens. A country which has ratified the convention has undertaken, by virtue of article II of the convention, to give to Canada, once Canada itself ratifies the convention, the benefit of copyright on the same basis as to its own citizens. The minister, may, through notice in the Canada Gazette, under authority of the abovementioned subsection, certify that any universal copyright convention country which is not a Berne union country (Canada already being affiliated with the Berne union members) is to be treated as one to which the Canadian Copyright Act extends.

I think that that about covers the background of this move by the government toward ratification of the universal copyright convention.

In conclusion, I wish to suggest that since the government has not yet drawn up the text of the new Copyright Act, the whole subject of copyright revision be not opened up at this time, nor that there be any discussion raised with respect to such questions as are not relevant to the motion before the house, that is, ratification of the universal copyright convention.

(Text):

Topic:   COPYRIGHTS
Subtopic:   APPROVAL OP GENEVA CONVENTION, 1952
Permalink
LIB

Julia Verlyn (Judy) LaMarsh

Liberal

Miss Judy V. LaMarsh (Niagara Falls):

Mr. Speaker, I should like to say at the outset that I am quite prepared to follow the minister's suggestion not to go into the intricacies of the question of a new copyright act at this time, since I assume the house is ready and anxious to speed on with its business to the termination of consideration of the supplementary estimates. However, I should like to make a few remarks with respect to the resolution before the house and I apologize to the house for the fact that I have found it necessary to make some rather extensive notes respecting this matter since otherwise I find it very difficult to remember dates and particular details.

Since coming to parliament, Mr. Speaker, I have taken a considerable interest in the subject of copyright and have this year, as I did last year, introduced a private bill to amend the present outmoded Copyright Act-that is, our domestic legislation-and also to ratify the convention which is under discussion and the protocols, with one of which this resolution also deals. In the past year I have widely distributed my modest offering and have requested and in many cases received some very constructive suggestions and criticism with respect to it. That bill was designed partly to bring the government to the point of this action and partly to give those people interested in the public at large specific draft legislation upon which to comment. I am delighted, Mr. Speaker, that it may well be that my modest effort has reached at least part of its objective in bringing this convention before the house for ratification.

Last year I frequently asked the Secretary of State (Mr. Dorion) when a resolution such as this might be brought before the house and when the government might be expected to introduce a new copyright act. After all, a royal commission set up in 1957 under the distinguished chairmanship of the

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Approval of Copyrights Convention Hon. J. L. Ilsley, to which the minister has referred, recommended the taking of such a step, and the recent royal commission on publications under the chairmanship of Mr. O'Leary did the same. As well, the Canadian authors association has presented a brief to the minister and the graphic arts industries association has repeatedly urged such action upon the government. In fact, I assume that in the change of business this matter has been brought before the house as a result of a meeting of publishers in Toronto within the past 10 days and a number of wires and representations made both to the government and to the opposition, including a letter which appeared in this morning's Montreal Gazette signed by Mr. Marsh Jeanneret, director of the University of Toronto press, which pointed out the great disability that would occur and the unfairness to Canadian publishers and authors if in fact this resolution were not ratified by this parliament.

In January, 1961, Mr. Speaker, the Ottawa Citizen in its issue of the 18th of that month reported that the Secretary of State had "labelled a redress of the present copyright situation imperative". I note the word "imperative", although that was January of 1961. He is also quoted in the same article as having said that he would "probe the practicality of having Canada adhere to the 1952 Geneva universal copyright convention". The minister was further reported in the Globe and Mail of March 8, 1961, as having written the president of the Canadian authors association as follows:

I hope that it will be possible to introduce a bill to revise the Copyright Act at the next session of parliament.

True to his word at least in part, we have before us a resolution to ratify the convention, although not a new Copyright Act. This encouraged all those interested, whether in the literary or artistic fields or in the printing and publishing lines, to believe that finally this legislation might be receiving a thorough overhaul. It was indeed a disappointment then to find in the speech from the throne this year no reference to a new act but only to the implementation of this treaty and, for the reasons explained by the minister, of only one of its three protocols.

Hon. members might well ask why the question of implementing this treaty is considered of sufficient importance to be included as a paragraph in the speech from the throne and as a matter of urgency at this time. There is, of course, the immediate problem which received considerable publicity last year when the chairman of the royal commission on publications learned to his obvious surprise of what is called the manufacturing

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Approval of Copyrights Convention clause, to which the minister has referred, in United States copyright legislation and its adverse effects upon our literary, printing and publishing people.

It is true that many writers have ventured the opinion that we might solve our problems and assist our own people simply by ratification of what is called the U.C.C., the treaty which is before us; but the so-called manufacturing clause has long been a part of United States copyright law, since 1909, in fact, and has frequently been the subject of heated debate in the United States congress. The convention has already received study in the other place and approval at least in committee; but will the assent of this house to this resolution solve the problem, as suggested by the minister, of the adverse effect upon Canadians of the American domestic legislation, much less make less urgent the need to amend our own copyright law? I think not. But in order to answer the question properly it is necessary to make a quick survey of the history of our copyright law in Canada, its purpose and the extension of these rights elsewhere in the world by means of our treaties with other nations.

Copyright laws do not protect ideas as patent laws do, but merely expressions of ideas. The report of the Ilsley royal commission explains, and I quote:

Copyright is in effect a right to prevent the appropriation of the expressed results of the labours of an author by other persons. That an author should have this right, at least for a limited period, is generally recognized-on the ground of justice, expediency or both.

A nation may, of course, legislate with respect to protection of such rights only as they may extend within its own territorial boundaries. The same rights are only extended to other countries and the nationals of other countries by reciprocal treaty.

In 1886 a group of countries signed an international treaty or convention by which each country signing agreed to give certain rights in respect of works of its nationals to the nationals of the other signatory countries. This came to be called the Berne union, and Canada signed by Britain upon the British government's initiative. Subsequently, in the same way, in 1896 Canada became the only North American country to sign what was called the Paris amendment to the Berne union convention. Later Great Britain adhered in 1923 at our request to another revision drawn at Berlin in 1908. Canada also became a party to the Rome revision of 1928, which fact, in the words of the Ilsley report, "places important limits upon Canada's freedom of action in legislating" in this field, with the result that "Canada is morally obligated in passing legislation to respect the Rome

convention". In 1948 the latest revision of the Berne union took place at Brussels, which Canada signed but to which she has never acceded.

Our Copyright Act, that is our domestic legislation, was passed in 1921 and proclaimed in force in 1924. It was modelled upon the imperial act of 1911 and both were framed to accord as nearly as possible with the Berne union convention, to which we were a signatory. The United States, however, has never been a Berne union country. The United States, which has protected copyright since 1891 by its domestic laws, has been an adherent to another international convention, the Buenos Aires convention, which included most of the South American countries except Brazil. In addition, the United States has, by a series of presidential proclamations provided for in its own copyright act, extended U.S. copyright to the nationals of other nations on a reciprocal basis.

These two groups have almost diametrically opposed theories of copyright. I am indebted to an article entitled "International Copyright Control, A Canadian Viewpoint", by Messrs. Sterling and MacLeod for this short comparison which may be of assistance to members of the house:

The continental concept expressed by the Berne union, views copyright as the primary and natural right of an author to tangible and intangible property in his work. From the primary right there may be derived particular rights which can be expanded or redefined as circumstances demand but, under this concept, the author has no obligation to comply with any formalities such as notice or registration of ownership. His right arises ab initio. The opposing theory, endorsed by the United States and Latin American countries, among others, postulates that copyright is a privilege conferred by the state to encourage creation and to ensure the fullest use of intellectual works. It emphasizes the need to balance the author's rights and the interests of society. To accomplish this, the state defines copyright and then prescribes necessary formalities by which copyright protection can be secured-

Now, Mr. Speaker, the difficulty is attempting to reconcile these two opposed views, and an attempt to do so was made in the universal copyright convention with which this resolution deals. This convention was promulgated in 1952 pursuant to article 27 of the universal declaration of human rights. It was an attempt, not to set up a rival to the Berne convention but rather to form a compromise solution for the union and non-union countries to secure so far as possible a truly universal copyright union.

This convention was signed on September 6, 1952, as the minister has said, at Geneva by some 86 countries including Canada and the United States, and it was subsequently signed by another four countries. The United States thereupon undertook a study of its copyright

act and, in order to comply with the terms of the Geneva convention, undertook a fairly substantial modification of its own domestic legislation. Having done so it then, in 1955, ratified the universal copyright convention. The United Kingdom followed the same course. They set up a committee appointed by the president of the board of trade as early as April, 1951, and that was called the Gregory committee. Subsequently, as a result of its report, the United Kingdom parliament adopted a new piece of domestic legislation, the copyright act of 1956, whereupon the United Kingdom then also ratified the universal copyright convention.

Canada started along this path as well. After signing the universal copyright convention in 1952, in order to review all of its commercial legislation which had, as stated earlier, been framed to accord with the Berne union convention and which had not been substantially altered in almost 40 years, Canada constituted a royal commission, which has been already referred to, under the distinguished chairmanship of the Hon. J. L. Ilsley on June 10, 1954. Its terms of reference may be of interest to hon. members of the house, many of whom were not here at that time, and I quote:

-to inquire as to whether federal legislation relating in any way to patents of invention, industrial designs, copyright and trade marks affords reasonable incentive to invention and research, to the development of literary and artistic talents, to creativeness, and to making available to the Canadian public scientific, technical, literary and artistic creations and other applications, adaptations and uses, in a manner and on terms adequately safeguarded the paramount public interest, the whole in the light of present day economic conditions, scientific, technical and industrial developments, trade practices and any other relevant factors or circumstances, including practices under or related to the said legislation and any relevant international convention to which Canada is a party.

In brief, the commission was set up to bring our commercial legislation into the late fifties or into the sixties. This commission, Mr. Speaker, made a series of separate reports on the various fields which it had studied, the first of which was submitted on August 1, 1957. On page 7 of the report the commissioners comment as follows:

Copyright seems somewhat more urgent-

I again call to the attention of the house the fact that this statement was made on August 1, 1957.

Copyright seems somewhat more urgent than patents, trade marks or industrial designs, chiefly because Canada has signed two international conventions but has delayed adherence to those conventions pending, as we understand it, our report on copyright.

The commission, of course, received many representations, discussed the matter with

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Approval of Copyrights Convention many experts in the field and had great benefit from the report of the Gregory committee in the United Kingdom and the discussions in both houses of the British parliament, together with the new United Kingdom act of 1956. In addition, two members of the commission visited Washington, London, Paris, Berne and the Hague to discuss problems with foreign experts. The obvious course intended to be followed was to establish principles for a new act, to give protection to our citizens and to conform to these international treaties.

In fact, during the almost five years since the report was made, no attempt whatever, so far as the public is aware, has been made to draft a new act which would, in advance, conform to the treaty which we are being asked by resolution to adopt. This treaty has been prepared upon the basis of a markedly different philosophy of copyright from that upon which our domestic legislation is based. It was only, Mr. Speaker, when the other place, in its standing committee on external relations, had before it certain representatives of the minister's department that it became public knowledge that over a period of years there had been a committee set up by the Department of the Secretary of State to study this problem. The committee was composed of Mr. Charles Stein, the former undersecretary of state, Mr. Harris Arbique, general executive assistant, Department of the Secretary of State, and Mr. Michel, commissioner of patents, and they had been discussing the possibility of drafting legislation for a new copyright act. One can only assume that now that the former under secretary of state has been replaced by another appointee, this committee will again get back to studying the legislation so that we can look forward to further amendments or to a whole new domestic act.

It is surely transparently clear, Mr. Speaker, from a reading of the Ilsley report and a perusal of the conduct followed in both the United States and the United Kingdom, that the proper course and the one that was intended that Canada would follow is to clear up our own legislative problems first in this field rather than to compound them by ratifying the treaty first. But what of the problem arising from the so-called United States manufacturing clause? Will, in fact, this problem disappear if we at once ratify the universal copyright convention? I should like to make a rather extensive reference to a very clear statement on the matter contained in a paper written by Marsh Jeanneret, director of the University of Toronto press, and himself a lawyer, as it appears in the September-Oc-tober 1961 issue of Quill and Quire, pages

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Approval of Copyrights Convention 2, 3 and 4, and which has been issued as a reprint. Mr. Jeanneret says this in discussing this problem, and its effect on Canada:

We are simply concerned with the mutuality of copyright, or lack of it, between this country and the United States on ordinary books written in English.

Just as an aside, Mr. Speaker, may I say that it is rather a shame when we have a Secretary of State who is a native, French speaking member of the house, that this could not have dealt with French publications as well, but in fact it deals only with English publications.

What is the situation?

The Canadian Copyright Act of 1921 provided that the protection it afforded Canadian citizens was to be extended automatically to citizens of countries that adhered to the Berne convention. The United States was not and is not an adherent to the Berne convention. But the Canadian act went on to provide that the minister might certify that even a country which has not adhered to the Berne convention could be brought under the Canadian copyright blanket if the minister decided that such a country had granted to Canadian citizens the benefit of copyright protection on substantially the same basis as to its own citizens.

The United States copyright act of 1909 had already stated that where a foreign nation extends to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, United States copyright may be extended "by presidential proclamation" to the works of proprietors who are citizens of such a foreign nation. But the apparent reasonableness of this provision in the American act is shattered by the further conditions normally imposed on such foreign works by section 16 of the American act-usually referred to as the "manufacturing clause." Here is the actual wording of the relevant phrases of the discriminatory legislation:

"-The text of all copies accorded protection ... shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of typesetting machine, or from plates made within the limits of the United States from type set therein, or, if the text be produced by lithographic process, or photoengraving process, then by a process wholly performed within the limits of the United States, and the printing of the text and binding of the said book shall be performed within the limits of the United States ... provided, however, that said requirements shall not apply to works in raised characters for the use of the blind, or to books or periodicals of foreign origin in a language or languages other than English," etc.

The same section contains provisions for foreign author or copyright owner to procure ad interim copyright protection in the United States by registering his foreign-produced edition within six months; in such cases the U.S. manufacturing provisions need not be complied with for a period of five years, provided that not more than 1,500 copies in all of such a book may be imported into the United States during the period of such ad interim copyright protection. In practice, if more than 1,500 copies are imported into the United States, the holder of the ad interim copyright is called upon to abandon formally his claim to any U.S. copyright protection.

It is clear from what precedes that the "manufacturing clause" in the United States act distinguishes the latter legislation completely from its Canadian counterpart. Nevertheless, on December 26, 1923, Canada issued a declaration whereby the rights conferred by the Canadian act were to be extended to works of U.S. origin. As a result of this certification, the President of the United States on the next day issued a proclamation extending the benefits of the United States act to citizens of Canada. At first glance this must have appeared as a happy and reasonable reciprocal arrangement. Let it be clearly noted, however, that the extension of the United States act to works of Canadian ciitzens applied only to works manufactured in compliance with the provisions of the manufacturing clause quoted above.

In 1955, the United States ratified the universal copyright convention, from which Canada still stands aloof-notwithstanding the recommendations of the Hsley commission in favour of Canadian ratification. Among other countries which have long since ratified this new convention is the United Kingdom. By the terms of the universal copyright convention, adherent countries are required to give protection without formality. The United States therefore was obliged to suspend the manufacturing provisions vis-a-vis the works written by the citizens of other convention countries. However, it is of the greatest importance to note that (a) the manufacturing provisions still stand with respect to the works of citizens of countries which are not members of the universal copyright convention; and (b) the same provisions still deprive a United States author of the right to American copyright even if he publishes in another universal copyright convention country but does not observe the American manufacturing requirements. This last point is of real significance to Canada, even if this country does ratify the universal copyright convention.

The problem is not as simple as the minister has suggested. The ratification of the U.C.C. will not relieve from the manufacturing clause.

As Mr. Jeanneret said last fall, this is an action which could not be deferred much longer; but while Canadian authors would be offered some protection if they published first in the United States, American authors who publish first in Canada will be deprived of their rights at home.

In conclusion, the real question is not "how often do American publishers pirate Canadian copyrights" The important question is, "how often are Canadian publishers not commissioned to publish a work of American authorship"? The unreciprocal copyright protection existing today between Canada and the United States masquerades under the so-called reciprocal agreement, referred to earlier. Ratification by Canada of the universal copyright convention will only partially relieve the problem.

It was this, the manufacturing clause which when it came to the notice of the chairman of the royal commission on publications, Mr. O'Leary, led him to include, in his report under section 8, a reference to the advisability of ratifying this convention, although he did not seem to appreciate that ratification would be far from curing all ills complained of.

It was said that two royal commissions have recommended immediate ratification. What did interested members of the public and press think of it? I have already referred to the article "International Copyright Control"-a Canadian viewpoint-wherein the authors recommended ratification. Last year the Canadian authors association presented a brief to the Secretary of State called "The Authors Bill of Rights" which included these remarks:

We ask for Canada's adherence to the universal copyright convention, an action enabling Canadian authors to receive automatic protection in all 35 countries now members .. . The Canadian authors association is convinced that this country should enact a new, fully modern copyright law as expeditiously as possible.

The graphic arts industries association, in a brief circulated to all members of parliament dated February 5, 1962, dealing with the royal commission on publications, says in part:

A second step would be ratification by parliament of the universal copyright convention, which would have the effect, among other things, of partially offsetting the vicious restrictions of the U.S. copyright act, which have severely restricted Canadian book publishing and printing for nearly 40 years.

According to the same brief:

The printing, publishing and allied trades employ more than 74,000 persons-more than any other manufacturing industry, including more talented and skilled people than any other industry.

Of the public press, Mr. J. B. McGeachy writing in the Financial Post, the late Miss Judith Robinson, in two columns in the Toronto Telegram, and editorials in the Winnipeg Free Press and the Toronto Globe and Mail have indicated support for both ratification of this treaty and amendment to our domestic copyright legislation.

One might ask why then the delay of nearly five years from the time of the Ilsley report. There has been obvious urgency for providing more employment opportunities in Canada, and there is and will be a necessity to provide more and more opportunity for our skilled workers in such fields. There was only one reason expressed by the Ilsley report which would require a policy decision, other of course than preparing and passing new domestic legislation first-which was the whole purpose of the report-and that other reason was that if the U.C.C. were ratified first it would not be possible to make, if thought advisable, as in fact the commission recommended, any change in the term of years through which copyright would exist.

Under our present legislation copyright protection is extended to an author for his lifetime plus 25 years after, with a right for an additional 25 years to his representatives

16, 1962 3021

Approval of Copyrights Convention to collect royalities, but not to prevent copying. This is not the term of "life plus 50 years" which has been requested by the authors and to which Canada is already morally bound to adhere by the terms of the Rome convention of the Berne union, when all parties to that convention so enact.

The Ilsley commission recommended commencing the term of copyright at the time of publication of the work, to run for 56 years from the time of publication, or at the author's death. Four reasons were given for this recommendation, one being that it would bring the term more in line with that extended in the United States. The United States term is 28 years from publication plus an additional renewal for 20 years, and thereafter the work passes into the public domain.

The royal commission's recommendation in this regard has been very controversial, as the minister said. Debate is hot and heavy among those interested as to whether the term should be shorter or longer. Perhaps the difference in attitude is shown when one remembers that in the past year, when Verdi's copyright with respect to his works was about to expire the government of Italy gave in to popular pressure and extended the term, perhaps because the proceeds go to a retired musicians' home. Yet when the same problem arose in England with respect to the copyright in Gilbert and Sullivan's operettas, the government refused to extend copyright and let them go into public domain.

The Berne union countries generally have a term of life plus 50 years. It is most interesting to note that just last year the United States register of copyrights made a submission to the house committee on the judiciary of the U.C. congress, dealing with general revision of the United States copyright law, and at page 58, recommended amending the U.S. term to be reasonably close to the usual European term of the author's life plus 50 years, suggesting that there should be a maximum term of 76 years from first public dissemination. Yet Canada, in almost five years, seems incapable of making up her mind as to the length of term which should be adopted, and therefore abandons all those who might hope to see legislation in this field brought in line with that in the rest of the world, and leaves our authors with 25 years after life, with some other limited rights.

Is there still urgency about ratifying this convention? Of course it will be of some assistance in relieving against the United States manufacturing clause. It will allow our authors to sell their books and dispense with registration formalities. But its passage should not be allowed to dispel the urgency of new

Approval of Copyrights Convention domestic legislation to meet the needs of the times. And its passage will prevent a needed change in term of copyright.

It may be that even the need for urgency is almost passed. If the government continues to drag its feet to the very end of its term in office, in fact our neighbours to the south may yet solve the problem, as so often this government has left it to them to do. For in the same report of the United States register of copyright, to which I earlier referred, which has been disseminated to all those interested for comment, leading to a bill to be presented to congress, is the following recommendation:

The copyright office does not believe, in principle, that the rights accorded to authors should be dependant upon the employment of domestic printers. The office therefore recommends that the new law contain no provision requiring the manufacture of works in the United States nor any provision requiring the securing of ad interim copyright. It also believes there should be no provision in the copyright law limiting importation to 1500 copies.

So, in effect, had we waited six months the United States government might have cured the problem on its own.

In any event, we are once again being asked to put the cart before the horse-to give approval to a convention now ratified by some 39 of the 90 signatory countries which signed in 1952 or later. Again we are making a stab at the immediate problem, without dealing with the heart of the matter.

Mr. Speaker, before concluding I should like to mention briefly one other matter. This resolution asks only for approval of protocol 3. It appears to be the opinion of the government, as expressed in the debate in the other place by the government leader, that the other two protocols require legislation. I take it then that the government intends to ratify by means of order in council only, since protocol No. 3 deals only with effective date, and that no legislation is at the moment planned with respect to protocols 1 and 2 which respectively deal with the application of copyright to stateless persons, refugees, and to works first published by the United Nations or its agencies or by the organization of American states. It is greatly to be regretted that the conclusion that must inevitably be drawn from the fact of the announcement in the speech from the throne and the hasty bringing up of this motion on what might be the third, or second, or last day of this parliament is that Canada must await the return to responsibility of a Liberal government which is prepared to deal with this, as with so many other problems, without delay.

Topic:   COPYRIGHTS
Subtopic:   APPROVAL OP GENEVA CONVENTION, 1952
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NDP

Walter George Pitman

New Democratic Party

Mr. Walter Pitman (Peterborough):

Perhaps it is a matter of concern to us all that this resolution should be brought before this house in its last days when time is of the essence. It is a matter of concern that we could not have put things in their right order; we could have cleaned up all the complexities and cleaned up our act of parliament before we went off on this ratification.

None the less, the government is to be congratulated for turning to this matter and doing justice to those who are our authors and artists in this country in the last days of the session. I was interested to hear the hon. lady who represents Niagara Falls (Miss LaMarsh) mention a Canadian authors' bill of rights. In a sense this is very close to being a bill of rights as far as Canadian authors and artists are concerned, because in any democracy a basic freedom is surely the sanctity of property. Throughout the history of democracy in Britain there has been concern about the security of a man's possessions and their defence against authoritarian rule. We have seen in the desultory attitude in the U.S.S.R. and other satellite countries an attitude toward this particular aspect of a man's property which would lead us to believe that they are not very concerned with what we would call political democracy.

Some men's property is in buildings, goods and property of various kinds. Others use their imagination and produce literature, music, poetry and so on. Both kinds of property, whether material or of the imagination require protection. The Ilsley report states in this regard: "Nothing is more certainly a man's property than the fruit of his brain". That, I think, indicates the concern of all of us in this house. This legislation will, we hope, protect and give advantages to our authors and artists with regard to the property which emanates from the mind and imagination of gifted men and women in Canada. The resolution therefore commends itself to us.

Both the minister and the hon. member for Niagara Falls have given long accounts of the stages by which Canada has moved since 1896. I do not wish to repeat what has been said already. We do know that in the interim period this has been hanging fire since 1952 when Canada and 85 other countries signed this convention, 39 of those countries having already ratified the convention. It is remarkable to note in passing that this is another example of the work of the United Nations, particularly of UNESCO. We should not forget these organizations associated with the United Nations which do such good work. This convention was said to be appropriate to all the nations in the world. Canada thus joins a large number of countries which are seeking to protect their authors and artists.

Since 1896, since Canada was a member of the Berne convention, we have seen a number of revisions and we have also had a bilateral agreement with the United States. As both the minister and the hon. member for Niagara Falls have stated, the main problem has been the manufacturing clause in the United States legislation. The Canadian authors association has for many years sought to give arguments and reasons why we must advance in this area, and advance quickly. The royal commission pointed out the problems which were faced by our authors, and the O'Leary commission has now brought us to the point where we are ready to put this through before we leave for our constituencies. The advantages are many. Canada will be in a co-operative affiliation with many other nations. This will protect our authors. We shall be joining in an international agreement which is a progressive and forward-looking agreement which will, we hope, provide an impetus to our own arts and literature.

The immediate problem has been that of our association with our neighbour, the United States. It is always a difficult thing to live beside a giant. Although, in connection with the manufacturing clause we can, in a sense, reciprocate and keep out United States publications, it is obvious that United States facilities for Americans in Canada are not to be compared with the advantages which Canadians can secure in the United States market. The situation has been detrimental to the Canadian publishing and printing industry. A great deal of employment which would have come to Canada has gone by the way for the past number of years.

I hope that other artists will soon be brought under the Canadian legislation. As we know, there have been tremendous changes since the Canadian legislation was put through. I do not want to discuss them tonight because, as the minister said, we are not dealing with the act itself. I think we should express the position of this party, however, and say that we hope to deal with this matter as soon as possible. We in this chamber are concerned with the economic development of Canada but if we are to secure any kind of nationhood we must be equally concerned about artistic development, which is really the basis and the bond of nationhood in this nation of ours.

The royal commission dealt with more than just copyright. It dealt with patents, trade marks and industrial design. These were dealt with in separate reports and, of course, we cannot enter upon that field of discussion now. I will simply say that here nothing has been done in these other areas and it is a matter of great concern in Canada that we should be

Supply-External Affairs using legislation which is entirely and completely out of date in these other areas. An example I could give is the Industrial Design and Union Label Act. It is so out of date in its present form as to be completely unworkable. It does not even cover shape in terms of the design of particular articles. It appears that in our concern over securing economic progress we have allowed this problem to go unheeded and surely we have now come to the point when we must take definite action. In this parliament we have seen the sands of time run out and we must now adopt a hodgepodge solution to it. We must take stopgap measures in the hope that the problem will temporarily be dealt with until we return to this chamber once again.

I congratulate the government on taking this initiative and express the hope that the government will soon introduce other legislation that will be of benefit to our authors and artists, with whose problems I trust this chamber will concern itself more in the future.

Topic:   COPYRIGHTS
Subtopic:   APPROVAL OP GENEVA CONVENTION, 1952
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Motion agreed to.


PC

Daniel Roland Michener (Speaker of the House of Commons)

Progressive Conservative

Mr. Speaker:

The house will now resume the business that was interrupted at five o'clock.

The house in committee of supply, Mr. Martineau in the chair.

Topic:   COPYRIGHTS
Subtopic:   APPROVAL OP GENEVA CONVENTION, 1952
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DEPARTMENT OF EXTERNAL AFFAIRS


696. Canadian representation at international conferences-further amount required, $115,000.


LIB

Paul Joseph James Martin

Liberal

Mr. Marlin (Essex East):

Is the minister not going to be here?

Topic:   COPYRIGHTS
Subtopic:   DEPARTMENT OF EXTERNAL AFFAIRS
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PC

Gordon Minto Churchill (Minister of Veterans Affairs; Leader of the Government in the House of Commons; Progressive Conservative Party House Leader)

Progressive Conservative

Mr. Churchill:

Yes, he is on his way. I suggest that the hon. member proceed.

Topic:   COPYRIGHTS
Subtopic:   DEPARTMENT OF EXTERNAL AFFAIRS
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LIB

Paul Joseph James Martin

Liberal

Mr. Marlin (Essex East):

I think we had better wait until the minister is present.

Topic:   COPYRIGHTS
Subtopic:   DEPARTMENT OF EXTERNAL AFFAIRS
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PC

Gordon Minto Churchill (Minister of Veterans Affairs; Leader of the Government in the House of Commons; Progressive Conservative Party House Leader)

Progressive Conservative

Mr. Churchill:

We may as well pass the items now. There was a full discussion before five o'clock, was there not?

Topic:   COPYRIGHTS
Subtopic:   DEPARTMENT OF EXTERNAL AFFAIRS
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NDP

Murdo William Martin

New Democratic Party

Mr. Marlin (Essex Easl):

I shall place on the record the references to the observations of the minister on the point we were discussing before the debate was interrupted. These are observations made by the minister in this connection in answer to certain questions. These may be found on the following pages of Hansard for the dates cited. The first is to be found at page 2563 of Hansard of April 6, 1962; a statement that was not contested by the minister will be found at page 2335 of Hansard of March 30, 1962; at page 1593, of March 8, 1962; at page 761, of February 12, 1962; at page 2549 of volume 3 for the session of 1960 and at pages 4534-5 of volume 4 for the session of 1960.

Supply-External Affairs

These statements in connection with the government's policy on the resumption of tests, with regard to the attitudes taken by the Canadian government in connection therewith and with regard to the question of controls or no controls, speak for themselves. They are to be contrasted with the statement of the government's policy of the minister and with the statement attributed to the Prime Minister on Saturday last from which statement I have already quoted.

Topic:   COPYRIGHTS
Subtopic:   DEPARTMENT OF EXTERNAL AFFAIRS
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LIB

Lester Bowles Pearson (Leader of the Official Opposition)

Liberal

Mr. Pearson:

Before this vote carries, Mr. Chairman, I wish to ask the minister a question about reported arrangements-if that is not too strong a word-or reported negotiations between the United States and the U.S.S.R. which appear to have leaked in Germany and which deal, among other things, with an understanding which is under discussion, at least according to this report, between these two powers to the effect that neither will make available to any third country nuclear weapons or information concerning the manufacture and use of nuclear weapons. The press reports concerning these negotiations which emanated from Bonn and which have all the earmarks of a calculated leak in the Bonn are in very considerable detail. While I do not propose to go into the reports generally, because they deal with arrangements covering Berlin and access to Berlin and questions of that nature which we all hope will be worked out satisfactorily, nevertheless they cover the point that these two powers will refuse to make available nuclear weapons to any third power.

If this report is accurate it of course has a very important bearing on the whole question of the extension of nuclear weapons to a third power. In view of the great publicity given to this report over the week end, could the minister say anything about it?

Topic:   COPYRIGHTS
Subtopic:   DEPARTMENT OF EXTERNAL AFFAIRS
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PC

Howard Charles Green (Secretary of State for External Affairs)

Progressive Conservative

Mr. Green:

No, Mr. Chairman. I have no comment to make on that question.

Topic:   COPYRIGHTS
Subtopic:   DEPARTMENT OF EXTERNAL AFFAIRS
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LIB

Paul Joseph James Martin

Liberal

Mr. Martin (Essex East):

Mr. Chairman, I should like to ask the minister whether he has any comment to make on the report in today's Globe and Mail in which the Minister of Justice is quoted as having revealed that British Columbia has made new Columbia river proposals that seem to represent a significant modification of the government's previous position. This comment was contained in a statement issued in the minister's home constituency of Kamloops where he was visiting during the week end.

Topic:   COPYRIGHTS
Subtopic:   DEPARTMENT OF EXTERNAL AFFAIRS
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PC

Howard Charles Green (Secretary of State for External Affairs)

Progressive Conservative

Mr. Green:

Mr. Chairman, this has nothing to do with the item under consideration.

Topic:   COPYRIGHTS
Subtopic:   DEPARTMENT OF EXTERNAL AFFAIRS
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LIB

Paul Joseph James Martin

Liberal

Mr. Martin (Essex East):

I understood, Mr. Chairman, that under this item we would have a general discussion such as would normally have taken place under the departmental item, No. 692.

Topic:   COPYRIGHTS
Subtopic:   DEPARTMENT OF EXTERNAL AFFAIRS
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PC

Paul Raymond Martineau (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Progressive Conservative

The Chairman:

Shall the item carry?

Topic:   COPYRIGHTS
Subtopic:   DEPARTMENT OF EXTERNAL AFFAIRS
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LIB

Paul Joseph James Martin

Liberal

Mr. Martin (Essex East):

No, Mr. Chairman. I just made an observation. It was understood we would have a general discussion under this item rather than under item No. 692.

Topic:   COPYRIGHTS
Subtopic:   DEPARTMENT OF EXTERNAL AFFAIRS
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PC

Howard Charles Green (Secretary of State for External Affairs)

Progressive Conservative

Mr. Green:

Mr. Chairman, this is not an item under which hon. members are entitled to ask any question having to do with external affairs. I suggest the hon. member should adhere to the item under consideration. As a matter of fact I answered this same question this afternoon.

Topic:   COPYRIGHTS
Subtopic:   DEPARTMENT OF EXTERNAL AFFAIRS
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April 16, 1962