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Canada's International Obligations David Vaver Osgoode Hall Law School of York University, [email protected]

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Canada's International Obligations David Vaver Osgoode Hall Law School of York University, Dvaver@Osgoode.Yorku.Ca Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 1987 Copyright in Foreign Works: Canada's International Obligations David Vaver Osgoode Hall Law School of York University, [email protected] Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/scholarly_works Part of the Intellectual Property Law Commons Recommended Citation Vaver, David. "Copyright in Foreign Works: Canada's International Obligations." Canadian Bar Review 66.1 (1987): 76-128. This Article is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. COPYRIGHT IN FOREIGN WORKS : CANADA'S INTERNATIONAL OBLIGATIONS David Vaver* Toronto It is anticipated that proposals for a complete overhaul of the copyright laws will be presented to the Canadian Parliament in the very near ficture. The new legislation will likely extend protection to works and grant rights beyond those existing under the current Copyright Act of 1924 . This study examines the extent to which any new legislation must grant national treatment toforeign works, particularly technologies that have devel- oped and rights that have been proposed since the 1924 Act. The focus is on Canada's obligations under the Berne Conventionfor the Protection ofLiterary and Artistic Works and under the Universal Copyright Convention in the light of their- history andpurposes and in the light ofthe various conflicting interpre- tations of the treaties that have been offered. The study concludes that current proposals not to extend national treat- ment in respect of certain new categories of works and rights are for the most part consistent with Canada's international obligations. On s'attend à la présentation très prochaine au Parlement canadien du projet de refonte totale des lois régissant le droit d'auteur. La nouvelle législation protégera probablement des oeuvres nouvelles et accordera des droits qui n'existaient pas dans la loi de 1924 sur le droit d'auteur qui est actuellement en vigueur. L'auteur examine dans cet articlejusqu'à quel point la nouvelle législation devrait appliquer aux oeuvres étrangères le traitement qu'elle accorde aux oeu- vres nationales en ce qui concerne en particulier les technologies qui se sont * David Vaver, of Osgoode Hall Law School, York University, Toronto, Ontario. This study, and a companion piece, The National Treatment Requirements of the Berne and Universal Copyright Conventions (1986), 17 IIC 577, grew out of a prelimi- nary opinion submitted in early 1986 to the joint Canadian Bar Association/Patent and Trademark Institute of Canada Subcommittee on Copyright Legislation. I acknowledge the assistance of members of the Committee, particularly, H. Bernard Mayer Q.C. (of Smith, Lyons, Torrance, Stevenson & Mayer; Toronto), in supplying me with various published and unpublished material . I am grateful to the Social Sciences and Humanities Research Council of Canada and to Dean John D. McCamus of Osgoode Hall Law School for providing me with leave time to undertake the necessary research . I also acknowledge with thanks the following persons who read various drafts of the manuscript and made helpful sugges- tions: Professor Reuben Hasson of Osgoode Hall Law School ; Professors A.J. McClean and D.M. McRae of the Faculty of Law, University of British Columbia; and Professor Victor Nabhan of the Faculté de droit, Université Laval, Québec. The views expressed here are of course mine and do not necessarily reflect those of any of the above persons. 1987) Copyright in Foreign Works 77 développées et les droits qui ont été suggérés depuis la loi de 1924. L'auteur s'intéresse en premier lieu aux engagements pris par le Canada en vertu de la Convention de Berne pour la protection des oeuvres littéraires et artistiques et de la Convention universelle sur le droit d'auteur et les étudie à la lumière de leur histoire et des buts qu'elles se proposaient ainsi que des différentes interprétations parfois opposées qui en ont étéfaites. L'auteur en arrive à la conclusion que le prgjet actuel, qui n'accorde pas le traitement national à certaines nouvelles classes d'oeuvres et de droits, respecte presque toujours les engagements internationaux pris par le Canada. Introduction Reform of Canada's antiquated Copyright Act of 19241 is now on the horizon. Some two decades of rumination, reporting and studying cul- minated in a series of hearings before a Parliamentary Subcommittee, which issued a report in October 1985 bearing the catchy title, A Char- ter of Rights for Creators (henceforth "the 1985 Report'1) .2 The recommendations, most of which the current Government has accepted as the policy it proposes to implement in a new Copyright Bill,' are extremely wide-ranging. New classes of works and new sorts of rights are proposed in an attempt to ensure that media creators and entrepreneurs will benefit economically from the many ways in which works may now be created and used. Hardly any commercial or cultural endeavour will be untouched by these changes. The 1985 Report recognized that Canada was under certain interna- tional law constraints when enacting a new copyright law and sought to tailor its recommendations accordingly. Canada is a member of the two major international Copyright Conventions, the 1886 Berne Convention on Literary and Artistic Property ("BC") and the 1952 Universal Copy- right-.,Convention ("UCC"). While not an adherent to the latest 1971 texts of either of these Conventions, Canada has ratified the 1928 Rome text of the Revised Berne Convention ("RBC") and the original 1952 text of the UCC. The purpose of both Conventions is to make it easier for the subjects of member states to assert their copyrights internation- ally. Member states must comply with two basic obligations. First, they must grant copyright protection and certain minimum rights in respect of certain classes of works in favour of nationals of other Convention states . 1 R.S .C. 1970, c. C-30 (henceforth "Copyright Act" or "the Act"). The 1921 Act, as amended in 1923, is based on the Copyright Act 1911 (U.K.). It came into force on January 1, 1924 and has been subject to only minor amendment since. z Report of the House of Commons Standing Committee on Communications and Culture's Sub-Committee on the Revision of Copyright, A Charter of Rights for Cre- ators (1985, Ministry of Supply and Services Canada). 3 Government ofCanada, Government Response to the Report ofthe Sub-Committee on the Revision of Copyright (February, 1986). 78 LA REVUE DU BARREAU CANADIEN [Vol . 66 Secondly, in light of the difficulty of reaching international agreement on these minima, states must observe the principle of national treatment, "the complete assimilation of foreigners to nationals, without condition of reciprocity" .`t The principle of assimilation is potentially extremely valuable for Canadian copyright owners . A Canadian national who creates or pub- lishes a work in Canada or any other Convention state is assured of the same copyright protection in every other Convention state as that state affords to its own nationals for that sort of work. Apart from minor exceptions, no state will enquire what protection the work enjoys in Canada or will require any formalities other than those imposed on its own nationals ; indeed under the RBC no formalities of any kind are permitted as a condition of copyright protection. This situation is proba- bly the least burdensome form of international copyright protection short of the impossible goal of a uniform world-wide copyright law. At the same time, the principle of assimilation is potentially extremely onerous for a net importer of copyright material such as Canada. For- eign nationals of Convention states may create and publish their works first in another Convention state and will automatically have copyright protection in Canada just as if they were Canadian nationals creating or first publishing their work here.' It may be in Canada's interest to bene- fit its authors and media entrepreneurs by providing a high level of protection to a wide range of works, but the greatest dollar beneficiaries will end up being foreigners if Canada is bound internationally to embrace the same range of works within its copyright law and to extend the same high level of protection to foreign works . It was no coincidence that a large proportion of the submissions made to the Parliamentary Sub- Committee that eventually issued the 1985 Report came from organiza- tions that, however much they sought to wrap themselves in the Cana- dian flag, ultimately represented the interests of multinational and other foreign copyright interests . It was equally no coincidence that the major- ity of submissions favoured increasing the range of works entitled to protection and the level and number of rights accorded to existing and proposed works. 4 S.P. Ladas, The International Protection of Literary and Artistic Property (1938), p. 365. 5 Copyright Act, s. 4(1), (2). The works of UCC adherents and recent RBC adher- ents are assimilated to Canadian works by certificate granted under s. 4(2): see now Certification of Countries Granting Copyright Protection Notice, C .R .C. 1978, c. 421 . The wording of s. 4(1), extending protection to RBC states bound by RBC (Berlin 1908), may be insufficient to admit later RBC adherents (including those adhering to Rome 1928) to national treatment: see A.A. Keyes and C. Brunet, Copyright in Can- ada: Proposals for a Revision of the Law (1977), p. 44. The latter adherents, unless made the subject of a certificate under s. 4(2), may be unprotected in Canada, contrary to Canada's obligations under RBC (Rome 1928), art. 4(1) . 19871 Copyright in Foreign Works 79 A state considering creating new sorts of rights or protecting new sorts of works in its copyright law may of course adopt a strategy of voluntarily extending national treatment to all foreigners in respect of reforms, or at least to all foreigners who are nationals of states party to common Conventions such as the REC or UCC.
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