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-
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,
3014 HOUSE OF
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
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.
Subtopic: APPROVAL OP GENEVA CONVENTION, 1952