This blog post appeared first in Open Canada, the journal of the Canadian International Council, on November 20, 2023.
In the past few weeks there has been a flurry of activity with respect to international regulation of Artificial Intelligence (AI) such as the Bletchley Declaration spearheaded by UK Prime Minister Rishi Sunak, the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence signed by US President Biden, as well as the G7 AI Code of Conduct. Canada has been involved in some of these initiatives but will be affected whether or not it participates, including aspects of the AI issue dealing with protection of intellectual property, specifically creator’s rights protected through copyright laws. Indeed, there is a huge emerging issue related to whether the indiscriminate scraping of copyrighted content by AI developers to train their algorithms is legal under existing copyright laws, plus whether the output of content generated by AI can be legally protected under accepted copyright norms.
When it comes to copyright challenges today, Canada has just launched a public consultation on this issue (”Copyright in the Age of Generative Artificial Intelligence”) as part of the process of updating Canada’s copyright framework in the digital age. The implications of the extent to which AI and copyright are compatible illustrate the interdependent nature of national copyright protection regimes, notwithstanding the fact that each nation interprets and applies copyright law in slightly different ways. The key point here is that countries that are too lax in protecting their creative sectors could see their copyright-protected cultural industries suffer negative economic impact; countries that are overly protective could see investment in AI innovation flow to countries with lower copyright standards. Whatever international consensus emerges and whatever framework to regulate AI is developed, whether it be OECD guidelines or a more formal arrangement, Canada will need to be a party. Such is the nature of international issues these days, with respect to digital issues, copyright and intellectual property generally.
Canada is already bound by a number of international commitments with respect to its application of copyright, and these will undoubtedly have an impact on future and long overdue revisions to Canada’s Copyright Act. For example, the current international framework for protection of copyrighted works (books, films, music, performances, television and streaming content, broadcasts and other forms of copyright protected works such as software, paintings, drawings, photographs, etc.) is embedded in the TRIPS Agreement (WTO Agreement on Trade-Related Aspects of Intellectual Property Rights) that was a part of the establishment of the World Trade Organization in 1995. Canada, was of course, a party to TRIPS. With respect to copyright, TRIPS incorporates the terms of the Berne Convention, with the added benefit of a dispute-settlement mechanism to resolve disputes, something lacking in Berne. However, the WTO’s dispute settlement process is currently suspended owing to the inability to appoint new members to the WTO’s Appellate Body because of US opposition. The Berne Convention of 1886 (along with its periodic updates over the years) remains the bedrock of international copyright cooperation.
When it comes to copyright legislation, it is generally accepted that the first modern copyright law is the Statute of Anne, passed by the British Parliament in 1710. The stated purpose of legislation was for “the encouragement of learning”. For the first time it gave authors (or those to whom they assigned their rights) rather than printers the exclusive right to print or reprint their books. The period of protection lasted for an initial period of fourteen years. This provision was included in the US Constitution “to promote the progress of science and useful arts…”, again with an initial period of protection of fourteen years.
During the 18th and most of the 19th century, copyright laws were applied to nationals only of the country concerned or to works first published in a that country. Thus, British copyright applied in Britain (and the British Empire) to British authors but works by nationals of other countries could be freely reprinted in Britain unless first published there. The same applied in the US and other countries. Attempts were made to negotiate bilateral treaties under which reciprocal protection would be afforded the nationals the two countries concerned, but this resulted in a confusing patchwork quilt of protection. Eventually, under the leadership of the French novelist Victor Hugo, in 1886 the first international copyright treaty, the Berne Convention, was signed. Only eight countries ratified it initially, (Belgium, France, Germany, Great Britain, Italy, Spain, Switzerland and Tunisia). Notably absent was the United States which did not join Berne until 1989. Today, over 180 countries are members and some economies (like Taiwan, Hong Kong and Macao) that are not accessory states to Berne but are members of the WTO) also apply its terms.
When Britain joined Berne in 1886, the Convention’s provisions applied to all parts of the British Empire, including Canada, as Canada was not at that time a fully sovereign state. Nonetheless, copyright was a power conferred on the new dominion established in 1867 and in 1868 Canada enacted its first Copyright Act. This ambiguity led to conflicts with the imperial government, and on several occasions Canada tried to exit Berne, before acceding in its own right in 1928. Canada also tried to pass legislation favouring Canadian works over those from Britain, only to have the legislation vetoed by the Governor-General.
One of the issues was Canada’s desire to promote the Canadian printing industry. British works were protected by copyright in Canada but Canadian printers could normally not get printing rights from British publishers, despite the high cost of the imported British books. However, in the US, British works were freely printed without permission (“pirated”) because US copyright law did not protect British works. Canadian booksellers, instead of importing the expensive British editions of Charles Dickens and other British writers, would import the much cheaper pirated US editions. This was technically illegal, but the border was long and leaky. British publishers tried to pressure the British government to lean on Canada to block importation of their works printed in the US, but with limited success.
Just as British works were not protected in the US, nor were US works protected in Britain or other countries such as Canada. Thus, Canadian printers freely reprinted Canadian editions of US works by writers such as Samuel Clemens (Mark Twain), without permission or payment of royalties. That was legal at the time but what was not legal was the resale of these Canadian editions back into the US, a frequent occurrence. Thus, Clemens famously complained about “Canadian pirates” and tried to publish some of his works first in Montreal so he could claim British and Canadian copyright. Finally in 1891, the US agreed to respect the copyrights of other nationalities but only on condition that their works be typeset in the US.
For many years before it finally joined Berne in 1989, US publishers sought to obtain the benefits of Berne’s widespread international protection (applicable only to acceding parties) by simultaneously publishing works in the US and in Canada, through their Canadian publishing subsidiaries. This became known as “the back door to Berne”. Berne establishes a number of basic principles and commitment to minimum levels of protection by acceding states. For example, under Berne no formal registration is required to establish copyright provided that the fundamental requirements of originality, nationality and fixation are met, although registration can be provided as an option as is the case in both Canada and the United States. In the US registration is required if a legal action is taken to enforce a copyright. Berne also requires a minimum term of protection of the life of the “author” (meaning the creator of the work, even a visual work) plus 50 years after the author’s demise, although countries are free to establish a longer period of protection. The US, EU, and a number of other states, now including Canada, have extended the duration of copyright protection to “life plus seventy”, with a twenty-year extension allowing an author’s estate, or those who have acquired the rights, to have a longer period during which to exploit the work.
A key principle under Berne is “national treatment”. That is, each country is required to apply the provisions of the Convention within its area of jurisdiction to both nationals and non-nationals on an equitable basis consistent with Berne’s minimum standards. Today Canada and the US are both parties not only to Berne but also to many of the myriad of specialized copyright treaties, such as the “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled”, which establishes exceptions to copyright for visually disabled people.
It is not only international treaties that impose certain commitments on Canada, but also bilateral agreements such as the updated NAFTA, the CUSMA (called the USMCA in the US). One of the commitments that Canada made in CUSMA was to extend its term of copyright protection to align with that in the US. The implementing legislation for this commitment has now been enacted and the longer term of copyright protection came into effect in Canada on December 30 2022. However, the longer term applies only to works still under copyright protection. Any works that entered the public domain prior to that date do not benefit.
Given recent Canadian government initiatives, such as Bill C-11 (the Online Streaming Act) and C-18 (Online News Act), both of which will require US companies ranging from Netflix and Disney to Facebook and Google to contribute financially to production of Canadian content, in the case of streaming, or in the case of C-18 and news content, to Canadian journalism, one could well ask whether the US will try to intervene on behalf of these large US content and tech companies. After all, one of the basic principles of CUSMA is national treatment for US companies in Canada, and vice versa, with specified exceptions.
One of these exceptions is the so-called cultural exception, Article 32.6 of CUSMA, which relates to what could be called “copyright industries”. This article allows Canada to take actions to protect culture in ways that would be inconsistent with the Agreement but for the exception. Film and television production, as well as the publication of magazines, periodicals and newspapers, and radio, TV and cable broadcasting, are all included in the definition of a cultural industry. However, Article 32.6 has a sting in its tail. It allows the other parties (the US or Mexico) to take equivalent measures of retaliation in any sector of the economy if the cultural exception is invoked. In effect this means that if Canada uses the cultural exception to justify measures against US (or Mexican) companies, other sectors of the Canadian economy could suffer the consequences. As such, it is a poison pill, which explains why it is very improbable it will ever be used. Instead, if there is a US trade challenge to these pieces of legislation – which is unlikely given the range of US interests involved, (some of which support the legislation) – the Canadian government will not invoke the cultural exception but will argue the measures it is implementing are not aimed at US companies per se, but rather at specific commercial entities that have an excessive degree of competitive market power. Thus, there is no violation of the national treatment principle. At the present time, the only companies that fit the definition happen to be American, but in future the definition could extend to European companies or Chinese entities like TikTok or, potentially, Canadian companies.
All this just goes to show that no nation is an island, whether it concerns specialized areas like copyright or broader issues like AI harms. Copyright has adapted over the years to technological change, with AI being but the most recent example. Likewise, Canada has adjusted to the international framework regulating copyright, to its advantage and to the benefit of its creative industries, and it will need to continue to do so in future.
This article was first published on Hugh Stephens Blog