Canada
has slowly asserted an independent copyright position on the domestic and international
fronts in spite of intense and immense pressure from the USA and the UK. That
independence has taken a long time to achieve, and it has been denied or
imperiled many times – including now.
Being
something of a copyright nerd, I have a lot of books on Canadian and
international copyright. Three of these books deal in various ways with the
origins of copyright law in Canada in the 19th century.
The
latest and most detailed book is by Prof. Myra Tawfik of the University of
Windsor law faculty. Her monograph
published in 2023 is For the Encouragement of Learning: The
Origins of Canadian Copyright Law Myra Tawfik (Toronto, ON:
University of Toronto Press, 2023). (388 pages). Prof.
Tawfik has
excellent credentials and was cited twice in the landmark 2021 Supreme Court
of Canada decision of York University v. Canadian Copyright Licensing Agency (Access
Copyright), 2021 SCC 32 (CanLII),
<https://canlii.ca/t/jh8bc>. I am honoured that I was also cited in that decision,
along with Prof. Ariel Katz and others. I also provided arguments on behalf of
CARL that were very instrumental in the decision.
Prof. Tawfik’s book
examines in great detail early Canadian statutes and practice from 1824 to
1867, and a summary of how all of these early developments were influential in what
was to follow up to January 1, 1924 when the essence of Canada’s current Copyright
Act was proclaimed into force “100 years after Francois Blanchet rose in
the Lower Canadian House of Assembly to
introduce his Bill for the encouragement of learning” in 1824. 2024 is the
centenary of this 1924 milestone which was itself a centenary of the 1824
event. It is too bad that the Canadian copyright academy appears to have thus
far overlooked this centenary.
Canada
finally stood on its own when in 1924, paradoxically by implementing a statute
very similar the UK act of 1911, and finally cut the legal cord with the UK of
the Colonial Laws Validity Act with the Statute of Westminster of 1931.
This
19th century history has been ignored for too long, perhaps because
it has generally not been seen as immediately or very obviously relevant to the
kind of copyright litigation we have seen in the last many decades and are now
seeing. That said, the Courts
occasionally do explicitly reference the origins of Canadian copyright law –
for example in Justice Binnie’s opinion in the 2002 Théberge decision, which
Prof. Tawfik does indeed mention.
Her book begins with an
interesting introduction that highlights her thesis that Canadian copyright is
a fusion of British common law tradition and European civil law tradition. She
suggests that, in spite of the colonial
treatment of Canada in the 19th century, Canada (consisting mainly
of “Upper Canada” and “Lower Canada” as they were then known) developed a
normative approach aimed at “the encouragement of learning”. The struggle to achieve these “imperatives”
continues to this day, as Access Copyright and its protagonists deny the history
and destiny of Canadian copyright law and seek to cut back on fair dealing by, among
other thigs, eliminating the word
“education” from s. 29 of the Copyright Act.
In the period on which
she mostly focuses, namely 1824 to 1867, registration was required for those
seeking copyright rights. She has spent 15 years meticulously examining
available data about the registrations from that time. Interesting lists are
included in the appendices. She goes into great detail about the differences
between Upper and Lower Canada in those days. Indeed, there are still some
significant differences in how Quebec institutions, collectives, practitioners,
and scholars approach copyright law compared to the rest of Canada. So, this
background is not only interesting but potentially important.
The main theme of her
book is that “…copyright’s earliest focus was on advancing literacy and
learning by providing incentives to authors to disseminate their works. These
authors were teachers, and the works they were producing were school books.” This is well documented
by her painstaking examination of registration activities and legislative developments
in the 19th century and up to 1924.
Her first chapter deals
with “Contextualizing Copyright in Nineteenth-Century British North America”
and how British law, deriving from the 1710 Statute of Anne, and British
common law, were imported to a certain extent into pre-confederation Upper and
Lower Canada. This provides a fascinating political and historical perspective
of the early 19th century in Canada and makes one wonder all the
more about how confederations even took place in 1867 and the differences that
still survive. There is a discussion about the “Right of Petition”, whereby
persons could petition a legislature to buy multiple copies of a book for educational
purposes.
Chapter 2 deals with the
crucial role of the 1710 Statute of Anne and of American law, as enshrined in
the US Constitution to “promote the progress of science and the useful arts.”
Chapter 3 deals mainly
with the evolution of copyright law in Lower Canada. Interestingly, it shows
that French law was not a part of the 19th century developments in
Lower Canada and the “droit d’auteur” doctrines played no role until the
early 20th century, when
Canada implemented moral rights in its copyright law.
Most
of the balance of Prof. Tawfik’s book focuses on the importance of school books,
their essential role in the education of children, and the politics and legal
efforts to achieve these goals. This includes Chapters 5 and 6 on the 1832 Copyright
Act, and Chapters 7 and 8 on the UK Copyright Act of 1842, including
how it “put a tax on knowledge in Canada”.
Chapter
9 is an important look at copyright in the “Province of Canada” and a look at
registrations as “proxies for overall trends in authorship and printing and
publishing.”
Chapter
10 recounts the post-Confederation attempts by Canada to sever copyright ties with
England, still very much our colonial master, by virtue of being able to
disallow any Canadian law it did not fancy. The heroic Prime Minister Sir John
Thompson even made a special voyage to London in 1894 to deal with Canadian
copyright but tragically died en route. Canadians should never forget
his efforts and his famous quote cited by Sara Bannerman and myself characterizing Canadian
authors at that time as “belonging rather to the future than the present.”
The
book lives up to its promise in the introduction of showing how the “normative tradition
of a particular body of law” can be useful to judges to “interpret its modern applications”.
Indeed, Prof. Tawfik has demonstrated the focus on the encouragement of
Canadian books and their essential production, protection, and injection into
the Canadian educational system as a guiding principle throughout the 19th
century in the various components of what is now Canada. Accordingly, it is
fitting that there has been great interest in the last decade or so in the
historical background of Canadian copyright law – and in tracing this back to
the early, mid and late 19th century.
An indispensable
companion to Prof. Tawfik’s book is Prof. Sara Bannerman’s 1913 The Struggle for Canadian Copyright, which begins with the 1842 British legislation and goes up to
and including up to and even after 1971, the last major milestone in the
extremely important Berne Convention.
This book “deals primarily with Canada’s experience with the Berne Convention between 1886 and
1971.” I am quite honoured to see my name mentioned in the acknowledgments of
this important book. Prof. Bannerman, who holds a Canada Research Chair at
McMaster University, brings the perspective of an accomplished scholar who is
not a lawyer to this important period. Another useful book is Dominion and Agency: Copyright and the Structuring of the
Canadian Book Trade, 1867-1918.
by Eli MacLaren of the Department of English at McGill University,. This was
published in 2011. I am pleased to have both of these books on my shelf. Together
with Prof. Tawfik’s recent book, they comprise a remarkable trilogy.
I can enthusiastically
recommend all three of these books to any and all of the following:
·
Lawyers
who may need to point out the normative tradition, the DNA, and other aspects
of early Canadian copyright law and their relevance to modern Canadian
copyright;
- All
Canadian copyright academics; - Members
of Canada’s library and archive community; - All
Canadian post-secondary and public libraries; - Policy
decision makers at the K-12 and post-secondary levels in Canada; - Any
public servants concerned with copyright policy in Canada; and, - UK, American,
Australian and other foreign copyright scholars who wish to be well informed
about Canada’s copyright history.
HPK