Tuesday January 14, 2020

Copyright Law: A Brief History

Authored by: Marc J. Belliveau Posted in: Intellectual Property

Would you tell me, please, which way I ought to go from here?
That depends a good deal on where you want to get to” said the Cat.
I don’t much care where” said Alice.
Then it doesn’t matter which way you go” said the Cat.
So long as I get SOMEWHERE,” Alice added as an explanation.
Oh, you’re sure to do that” said the Cat, “if you only walk long enough.
(Lewis Carroll, Alice’s Adventures in Wonderland, Chapter 6)

A Time for a View

Looking back at Canadian copyright law over the last decade, one of the biggest developments was the 2012 Copyright Modernization Act, which expanded fair dealing user rights to include education, parody and satire, and recognized numerous socially acceptable means of reproducing copyrightable works without infringing them.

The last time such copyright reforms had occurred was in the late 80s, when something called “source code” (for computer software) needed to be pigeon-holed as a “literary work” (among other statutory amendments). Since that time, the film, music, videogame and other industries converted their protected content from magnetic tape to digital compact discs and then the “world wide web” revolutionized how businesses and social networks own and use copyrighted subject matter.

So, during the preceding decade, Canada demonstrated considerable international leadership by reforming its legislative copyright framework to deal with the evolving digital internet age.

Now, in 2020, one may well ask “How did we get here?”, just like Alice asking the Cat for directions to “somewhere” in the above Lewis Carroll excerpt. Sometimes it helps to know where you started out when trying to figure out where you’ve finally arrived.

The Origins of Copyright Law

Canadian copyright law can trace its roots back to the British Statute of Anne of 1710. That law completely changed the pre-existing ownership regime over written works in England, and ultimately the Commonwealth.

Prior to 1710, royal printing press monopolies were routinely granted to stationers’ guilds, which controlled what could be published. English monarchs worried that the use of new movable-type printing presses by dissidents would unduly disseminate new anti-establishment ideas and fuel sedition and heresy. The powerful printing and book trade would carry out royal directives as a quid pro quo for their exclusive copyright monopoly status. In modern parlance, one would describe those royal directives as public censorship.

Authors of books did not have any rights recognized at common law.

The Statute of Anne is named for Queen Anne (whose name is also the source name for Annapolis Royal, Nova Scotia). Its full statutory title was long but very insightful: “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”. Quite a mouthful!

It reversed the existing monopolies of printers and stationers. For the first time, public law gave authors the exclusive right to reproduce their intangible literary creations. Subject to a couple of “grand-fathering” exceptions, the Act granted authors exclusivity for 14 years from the date of publication, renewable for another 14 years if the author was still alive at expiry of the initial term. A public registry was established and, later, copyright notice requirements were legally required to protect the public.

The 1710 Act was expressly directed at the reading public, the continued supply of useful literature and the general advancement of education. The thrust was to encourage “learned men to compose and write useful books”. It established a pragmatic bargain involving authors, printers and the public. The Statute of Anne ended the old system whereby only literature that met the censorship standards administered by the printers could appear in print. It also created a public domain for literature, as previously all literature belonged to the printers’ guilds forever.

And Now for Something Completely Different

Today, with copyright law evolving internationally to cover more and more subject matter (e.g. plays, music, sculptures, paintings, moral rights, neighbouring rights, sound recordings, user-generated content), and its monopoly terms approaching quasi-perpetuity in many countries (in some jurisdictions, the copyright term is life of the author plus 100 years), one wonders at how far we’ve come since the Statute of Anne and its simplistic yet noble educational objectives.

For example, the Copyright Modernization Act created new rights for performers and photographers, imposed new stringent restrictions and liabilities related to technological protection devices (also known as “digital locks”), created new quasi-criminal provisions to target websites which enable infringement, adopted a “notice-and-notice” regime for internet service providers, and reduced the amount of statutory damages for non-commercial infringement. As noted above, it also confirmed and expanded “fair dealing” reproduction rights for users of copyrighted works, and allowed time shifting, format shifting and back-up copying, which most people were doing routinely for many years without statutory codification.

While some commentators believe that the government struck an appropriate balance between public interest and industry needs, many believe that the expanded content controls are not in the public interest and unduly compensate the already powerful content industries who lobbied for them. The draconian digital locks provisions have the potential of discouraging learning and enlightenment, just like the highly controlled printing presses did so in the times of Queen Anne.

Where are we going? Has Canada reached the copyright place it wanted to get to? Or is Canada travelling back over 300 years to a time when technological censorship trumped the goal of greater societal learning and advancement? Time will tell…perhaps if we walk long enough.

If you would like more information about copyright law, please contact our Trademark Agent Marc Belliveau.

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