Sir John Sparrow David Thompson, c. 1895
Painting by Bonne de Bock
Courtesy of Library and Archives Canada Blog
We are told he is the best Prime Minister Canada never had. Sir John Sparrow David Thompson served only two years in that capacity; an untimely death on 12 December 1894 cut short his stewardship. But his contributions to Canada spanned much longer than those two years would suggest.
Under Sir John A. Macdonald, Thompson held the position of Justice Minister (sworn in on 26 September 1885), a responsibility he maintained to his death. While deeply respected by his Conservative colleagues, Thompson’s sterling character did not always meet with approval from all; one party stalwart moaned: “He won’t even consider whether a thing is good for the party until he is quite sure it is good for the country.”[1]
As Justice Minister, Thompson undertook the monumental task of giving Canada its own Criminal Code. Working closely with a bi-partisan committee, the result was a statute that reflected Thompson’s skills as jurist, and dedication as a Canadian. His first biographer, J. Castell Hopkins, would argue that the Code was far more deserving to be named for its maker than the Code Napoleon. Thompson also served as an arbiter in the Bering Straits dispute between Canada and the United States, and he staunchly supported the position that Canada should set its own copyright course—that indeed Canada had the right to do so as a self-governing Dominion.
Thompson’s commitment to the rule of law, fairness and justice were unparalleled, earning him praise from both sides of the aisle. He was, in a word, a statesman. Throughout though, he was confronted by the internecine Catholic/Protestant mistrust, a challenge that has largely faded from Canadian memory but was as potent in its time as the misplaced-hostility over multiculturalism is today. Thompson, a Methodist turned Catholic, initially turned down Governor General Lord Stanley’s request to assume the helm following Prime Minister Macdonald’s death—Thompson felt that his Catholicism would provoke trouble for the government. But when MacDonald’s successor John Abbot resigned on account of poor health, Thompson agreed to lead the Conservative Party and thus too the Government of Canada.
My interest in Thompson was sparked during my doctoral exploration of Canadian copyright history.[2] In 1889, under Thompson’s guidance, the Canadian Copyright Act was amended as necessary to address the complexities of Canada’s geographic and political position, caught as the country was between American capitalism and British imperialism. Passed with unanimity by Canadian parliamentarians, the Act encouraged the development of a national publishing industry by ensuring the legitimate reprinting of works of foreign authors, through a compulsory royalty. This measure applied only if the copyright holder did not seek publication in Canada within one month of publication elsewhere. Canadian readers and all authors would have benefited.
But the passage of the 1889 Act required disengagement from Imperial copyright law, as also from the blanket pronouncements of the recently-formed Berne Convention. Thompson argued, not for Canadian autonomy, but for recognition of the autonomy as it already existed in the British North America Act of 1867 and had further developed in the decades following Confederation. Unfortunately, although Thompson held the better argument, the political clout of British and American publishing industries ensured that such recognition was withheld.
British intransigence towards Canada stemmed in part from the desire to bring about an Anglo-American copyright treaty; Canada was a valuable bargaining chip. Even before a treaty of sorts eventually transpired, the Canadian market was offered up by savvy copyright holders who sought private arrangements with American publishing houses. If assured that no similar arrangement would be made with a Canadian printer, American publishers were willing to provide some compensation to the owner. As P. B. Waite describes, the tone was not always benign: “You will get no compensation whatever from us, if you permit any Canadian house to publish your work.”[3]
These practices were so widespread as to merit inclusion in a Royal Commission on Copyright. Aware of the gentleman’s agreement among American publishers (some might say honour among thieves), whereby the right to continued publication was reserved to the house that gained first publication, the Commissioners observed:
[S]ecured from competition … it is worth while for [American publishers] to rival each other abroad in their offers for early sheets of important works. We are assured that there are cases in which authors reap substantial results … and instances are even known in which an English author’s returns from the United States exceed the profits of his British sale …. (para. 242)..
Notably, that same Commission report supported the measures that Canada would later attempt to enact in 1889 (paras.206-207).
When the long-desired Anglo-American Treaty came into being, it provided much less benefit than what Canada had offered. The United States would not abandon its manufacturing clause—ensuring the betterment of American industry and loss to the British counterpart—meaning that foreign authors could only obtain copyright for works set and printed within the United States. Faced with that expensive proposition, English authors and publishers were left with little to show for the years of waiting. Following the passage of the American Copyright Bill, C.J. Longman (of the House of Longman) did not mince words:
The Act … offers protection—on conditions—to any British author. There are already signs that the value of this protection may be over-estimated in this country. It is desirable therefore to point out that to those writers whose published works are before the world, … but have failed to attract the attention of pirates, the Act gives no advantage. If there had been any prospect of republishing those books profitably, the enterprising American publisher would certainly have availed himself of his chance when he could have had them for nothing. ….
– “The American Copyright Bill,” The Economic Review 1.2 (1891).
Despite the inadequacies of the American arrangements, the British Crown continued to refuse Canada’s requests for independent action regarding copyright. Even though Sir Charles Trevelyan had emphasized for years that partnering with Canadian publishers would allow England to gain the upper-hand in the reprints market of North America as a whole. That logic, not to mention the greater benefit for English authors, fell on deaf ears. English authors and copyright holders could neither envisage altering the model of monopoly copyright, nor tolerate diversity within colonial implementation of the law.
Thompson continued to press his case with clarity, evidence, and appeals to the rule of law. Invited to serve as a member of the Queen’s Privy Council, he traveled to London in December 1894 to be sworn in. In the days prior to the ceremony, Thompson discussed the copyright issue with members of the Colonial Office, and achieved some recognition of the legitimacy of Canada’s position: “… the claim of the Canadian legislature is a good one, and the burden of proof that it is contrary to public policy rests on those who contest it.”[4] But whatever ground Thompson had gained, was never to be capitalized on. Within hours of the swearing-in ceremony Thompson collapsed at Windsor Castle and died. He was forty-nine.
Without Thompson’s leadership, Canada could not achieve meaningful independence on matters relating to copyright.
Notes:
[1] Quoted by Gordon Donaldson in The Prime Ministers of Canada (Doubleday Canada Limited, 1994) p.53
[2] I cover this period of history in detail in “The Copyright Act of 1889–A Canadian Declaration of Independence,” Canadian Historical Review, Vol. 90, Issue 1, p.1-28.
[3] Quoted by Peter B. Waite in “Sir John Thompson and Copyright, 1889-1894: Struggling to break free of Imperial Law,” Bulletin of Canadian Studies. Vol.6 No.2, p.36-49.
[4] Ibid.
Update: See also “The Geopolitics of Nineteenth-Century Canadian Copyright, as seen by some British Authors,” Papers of the Bibliographical Society, Special Issue — Canada 150. Bound by Three Oceans Vol. 55, No. 2 (2017). Published February 2019.
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