Thursday, December 12, 2019

125 years: copyright independence lost

125 years ago today, John Thompson, Canada's "copyright" Prime Minister died suddenly, changing the course of Canadian, and possibly international, copyright history.

As Justice Minister, Thompson had seen the passage of a Canadian Copyright Act that departed from Imperial norms. Called "a declaration of Canadian copyright independence," the act set out to encourage the domestic publishing industry and the availability of books in Canada by requiring first or simultaneous publishing in Canada for works to be eligible for Canadian copyright.  This copyright nationalism was prohibited by the international  norms written into the Berne Convention, and as such, the Canadian government requested that the British Imperial government denounce the Berne Convention on Canada's behalf.

The Imperial government never carried out Canada's request, eschewing the norms of the time, because it was fearful that such a move would be copied by other countries and that the newly-established system of international copyright would break apart. It also never proclaimed the Act into law, despite the act's passage and receipt of Royal Assent (Bannerman, 50).

When Thompson became Prime Minister in 1892, the conflict over copyright was still live.  The Canadian government insisted on copyright independence from the Imperial government and the imperialist Berne Convention.  In 1892, Thompson explained why Canada needed copyright independence, writing:
The Berne Convention had in view considerations of society which are widely different from those prevailing in Canada. In Europe the reading population in the various countries is comparatively dense; – in Canada, a population considerably less than that of London is dispersed over an area nearly as large as that of Europe. In the cities of Europe, especially in Great Britain, the reading public is largely supplied from the libraries, while, in Canada, as a general rule, he who reads must buy. In European countries the reading class forms but a fraction of the whole population, while in Canada it comprises nearly the whole population. (Quoted in Bannerman, 50; see the original here; more archives available here)
I recount how this story ended in my book The Struggle for Canadian Copyright: Imperialism to Internationalism, 1842-1971:
The question of copyright sovereignty became a high priority.  Whereas the Canadian government under Macdonald had kept a low profile on copyright, Thompson placed copyright sovereignty on the agenda when he visited the Colonial Office in London in November 1894, calling it a matter that had “now reached what I consider a critical stage.” A meeting between Thompson and other interested parties was arranged in London; as a result of the meeting and the discussions that were to follow, Toronto’s Globe reported, “a decided step is likely to be taken in the settlement of this vexed question.” Shortly after, however, the 1889 Canadian copyright act lost its most important supporter. With the copyright issue still on the agenda and his trip to London not yet complete, Thompson suffered a fatal heart attack at Windsor Castle on 12 December, after being sworn in to the Queen’s Privy Council. His body was brought back to Canada on the HMS Blenheim, its sides painted black, and a state funeral was held at Halifax. The Globe noted the particular loss that would be felt by Canadian copyright interests. No other Canadian prime minister would give the issue as much thought and salience as Thompson had. (Bannerman, 61)
The "settlement of this vexed question" was never made known.  Had Canada Thomson brought home copyright independence, other countries indeed  might have followed.  Instead, the Berne Convention held together, hamstringing the Canadian publishing industry (as Eli Maclaren argues) and ensuring the continued dominance of British, French, and German publishers worldwide for over a century.