Meera Nair

Multicultural Beginnings

The granting of Canadian copyright, as an area of federal supervision, came via the British North America Act (1867). Copyright was simply listed as one of twenty-nine federal responsibilities. Canada’s first independent legislation, the Copyright Act of 1921, was modeled in the Anglo-American tradition, but with a noticeable difference.

The title of the first English copyright law, reads as, “An Act for the Encouragement of Learning, by Vesting the Copies of printed Books in the Authors, or Purchasers, of such Copies during the Times therein mentioned….” The United States Constitution stated that Congress, “shall have the power … to promote the Progress of Science and the Useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Despite the blueprint of its forbears, Canadian law contains no specified purpose for copyright.

Yet this does not mean that copyright serves no cultural purpose in Canada. A clue lies in the titles of our Act: Loi sur le Droit D’Auteur and Copyright Act illustrate two differing conceptions supporting the protection of creative effort. Canadian law draws both from the French civil law foundation of intellectual property as a natural right, and, the Anglo-American common law inclination towards a utilitarian justification for intellectual property rights. The two regimes are often held in opposition with creators’ rights seemingly opposed to social gain. Truth be told, neither regime operated with one party exclusively in mind.

The works of Jane Ginsburg, Gillian Davies, Siva Vaidhyanathan and Lawrence Lessig, all show that in their infancy the two regimes were not substantially divergent and, in their maturity, again show signs of similarity. Ginsburg examines speeches from Revolutionary Assemblies, legal text, and court decisions and concludes that all reflect an instrumentalist undercurrent to French copyright law. In early modifications of the law, the author is not inscribed securely at the core of a property right, “The 1791 text is preoccupied with the recognition and enlargement of the public domain … the 1793 law emphasizes that the protection of the authors will not prove detrimental to society,” (Ginsburg, 1994: 144).

Gillian Davies concurs, she indicates that the first incarnation of a French copyright law was in aid of reducing a monopoly in the theatre industry. This was not unlike the introduction of English copyright law which, in part, aimed to reduce monopoly in the English book trade. In any case, it was not until 1957 that French law decisively cast the objective of their law as the protection of author’s rights.

With respect to the American development of copyright, Ginsburg examines the Committee of Detail and Madison’s writings in the Federalist Papers. While the Constitutional language suggests the intention was public benefit, the rights of creators were not overlooked in those early days. Lessig and Vaidhyanathan bring further attention to the increased focus on the author as American copyright evolved. Vaidhyanathan pays close attention to the activities of Mark Twain, not only his literary work, but also his role in shaping nineteenth century American copyright law. Private rights enacted within United States’ law grew, culminating in the Digital Millennium Copyright Act and Copyright Term Extension Act. As people may know, it was in response to the steady expansion of copyright that Lessig developed the Creative Commons system.

The (snapshot) lesson to take from this brief history, is to know that the practice and interpretation of copyright law is much more subjective than an ideological perspective alone would dictate.

Nevertheless, Canada is fortunate that we are not bound by any set ideology. It is to Canadian advantage that a goal of copyright was not fixed in text. (Ex., when David Levine spoke in Vancouver last spring, he mentioned that moral rights were not likely to be introduced into American law, as there was no constitutional grounds for doing so.) Canada enjoys greater potential for the law to adjust according to the changing circumstances of creative activity and creative flow.

References

Davies, Gillian. (1994). Copyright and the Public Interest. Weinheim : VCH Verlagsgesellschaft: New York, NY : VCH Publishers.
Ginsburg, Jane. (1994). A Tale of Two Copyrights: Literary Property in Revolutionary France and America. In Brad Sherman & Alain Strowel (Eds.), Of Authors and Origins: Essays on Copyright Law (pp.131-158). Oxford: Clarendon Press.
Lessig, Lawrence. (2002). The Future of Ideas: The Fate of the Commons in a Connected World. New York: Vintage Books.
Vaidhyanathan, Siva. (2001). Copyrights and Copywrongs: The rise of intellectual property and how it threatens creativity. New York: New York University Press.
Whyte, John D., & William R. Lederman. (1977). Canadian Constitutional Law. Toronto: Butterworths.

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