Middle powers and new copyright coalitions: better, stronger, more just?

In his Jan. 20, 2026 speech at the World Economic Forum, Canadian Prime Minister Mark Carney recognized that "multilateral institutions [...] are under threat" and that current crises have "laid bare the risks of extreme global integration."

He recognized that "the story of the international rules-based order was partially false." "You cannot live within the lie of mutual benefit through integration, " he said, "when integration becomes the source of your subordination." 

What should the Government of Canada do? Carney suggested that Canada, as an "intermediate" or "middle power" should "hear the wake-up call, leading us to fundamentally shift our strategic posture" to "build a new order that encompasses our values." 

Canada, he said, should find "different coalitions for different issues based on common values and interests." This, he said, "is not naive multilateralism, nor is it relying on their institutions. It's building coalitions that work – issues by issue, with partners who share enough common ground to act together." "We can build something bigger, better, stronger, more just," he said; "This is the task of the middle powers, the countries that have the most to lose from a world of fortresses and most to gain from genuine cooperation."  

The World Intellectual Property Organization and the sustainable development agenda: new article

My article "The World Intellectual Property Organization and the sustainable development agenda" is now published.  This paper was developed as a keynote talk for the Intellectual Property and Sustainable Development Conference which took place on September 6, 2018 at the Queensland University of Technology.

Abstract
The UN’s Agenda for Sustainable Development is being taken up throughout the international system, including at the World Intellectual Property Organization (WIPO). This article examines WIPO’s approach to the sustainable development agenda in light of its past approaches to development. In the first part of this article, I outline some of the longstanding major critiques of the discourse of sustainability, noting that these critiques anticipated the current lamentable status of a sustainable development agenda for WIPO. Next, I discuss the history of development agendas at WIPO in the context of WIPO’s history and role at the centre of the global intellectual property system. I then ask what role intellectual property has to play in the SDGs. I conclude by suggesting that an adequate agenda for sustainable development is unlikely to be developed at WIPO and must, rather, come from outside.

Read the full article.

Citation: Bannerman, Sara. "The World Intellectual Property Organization and the sustainable development agenda." Futures 122(2020): 1-8. https://doi.org/10.1016/j.futures.2020.102586

Thanks to Professor Matthew Rimmer and the QUT IP and Innovation Law Research Program for their invitation to the conference. Thanks also to Emmanuel Appiah for his research assistance. This research would not have been possible without the support of, and funding from, McMaster University and the Canada Research Chairs program.

New book out: Canadian Communication Policy and Law

 My new book Canadian Communication Policy and Law has just been published!



The book is available in print and e-book formats and will be available for short-term rental on VitalSource starting in the fall.

“At last, a book on Canadian communication policy that thoroughly integrates critical theory including political economy, gender, and race-based approaches, as well as Indigenous and postcolonial analysis. Bannerman’s crystal-clear prose and exhaustive research provide readers with the definitive guide to who benefits from public policy in a digital age.”
    —Vincent Mosco, Queen’s University, Author of The Smart City in a Digital World

“With its robust attention to critical race theory and intersectionality, Bannerman’s book enriches scholarship in Canadian communication policy and law. The book tackles some of the most pressing communication and digital policy issues today, highlighting in particular the imbrication of power and politics and the importance of upholding the often-vexed nature of the public interest.”
—Leslie Regan Shade, Professor, Faculty of Information, University of Toronto

 "This exciting and innovative new text from Sara Bannerman brings a diverse range of critical perspectives to bear on enduring issues and pressing concerns in communications policy, law, and regulation in the 21st Century. The scope is as ambitious as it is impressive. At each step of the way, Bannerman deftly guides readers through the hotly contested issues that will continue to shape the terrain of intellectual property, freedom of expression, privacy and data protection, telecommunications, broadcasting, and internet regulation for years to come.”
—Dwayne Winseck, Professor, School of Journalism and Communication, Carleton University

“This work is immensely valuable in many respects—it offers an engaging introduction to a wide range of theoretical approaches that are made accessible through clear prose and compelling real-world examples. Unlike many introductory texts, which present perspectives on law and policy in a neutral fashion, this work offers a vigorous critique of Canada’s legal and regulatory communications framework—a regime that, while neutral in its face, serves to reinforce inequity and preserve the status quo.”
—Lisa Taylor, Associate Professor, School of Journalism, Ryerson University

“Sara Bannerman offers a unique primer on a range of Canadian policy and legal issues pertaining to media and communications; its expansive scope is unparalleled. What especially stands out about this book is its attention to the underlying power structures that shape policy and law, as well as its innovative approach to guiding readers through the process of legal research. This text is essential for anyone interested in how Canadian media and communications are shaped by law and policy.”
—Tamara Shepherd, Communication, Media and Film, University of Calgary

“Canada’s rapidly-changing communications system requires thoughtful analysis of both long-standing and emergent issues, from intellectual property law to telecommunications policy. Synthesizing decades of research and legal precedent, Dr. Bannerman unpacks core debates from various theoretical and normative standpoints, paying close attention to power relations and systemic bias, and offering readers a framework to engage in policy research. This is a valuable resource that connects communications policies with the lived experiences of the diverse individuals and groups who make up Canadian society.”
—Rob McMahon, Communications and Technology, University of Alberta

 

Summary

This essential resource examines the central issues in Canadian communication policy and law, including freedom of expression, censorship, broadcasting policy, telecommunications policy, internet regulation, defamation, privacy, government surveillance, intellectual property, and more. Taking a critical stance, Sara Bannerman draws attention to unequal power structures by asking the question, whom does Canadian communication policy and law serve?

The in-depth discussions consider fundamental theories for analyzing law and policy issues, such as pluralist, libertarian, critical political economy, feminist, queer, critical race, critical disability, postcolonial, and intersectional theories. Accessibly written and featuring further readings, a glossary, and a chapter on legal and policy research and citation, this book provides a superb introduction to the field for students in media studies and communications programs, while also synthesizing advanced critical analysis of key problems in Canadian communication policy and law.

 

Table of Contents

Introduction

Chapter 1: Whom Do Law and Policy Serve?
Chapter 2: Introduction to the Canadian Legal System
Chapter 3: Freedom of Expression and Censorship
Chapter 4: Defamation
Chapter 5: Privacy
Chapter 6: Government Surveillance
Chapter 7: Intellectual Property
Chapter 8: Telecommunications Regulation
Chapter 9: Broadcasting Regulation
Chapter 10: Internet Regulation
Chapter 11: Access to Information
Chapter 12: Legal and Policy Research and Citation

Conclusion
Glossary
List of Acronyms
Bibliography
Index

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.

Universities should educate, not police copyright

My op-ed on why universities should focus on educating faculty and students about copyright rather than online copyright enforcement is available on The Conversation here and in various other publications.

Copyright exceptions for research need attention at WIPO

Last week, the World Intellectual Property Organization (WIPO) continued discussions of a possible international instrument dealing with limitations and exceptions to copyright for educational, teaching and research institutions and persons with other disabilities.

IP Watch reports that proposals have now been narrowed to a core set.  While this core set retains many important proposals relating to educational institutions, many past proposals relating to research institutions have disappeared, including an important proposal relating to data gathering that is core to research.  Past proposals made before WIPO have included important exceptions that would help drive digital research, including data mining, which is becoming more and more key to scholarship.  The following proposal, which I view as especially important, was not included in the core set:

The reproduction and reuse by search engines, automated knowledge discovery tools, or other digital means now known or later discovered of any lawfully obtained copyrighted work for purposes of not-for-profit scientific research, including storage, archiving, linking, data mining procedures, data manipulation, and virtual scientific experiments subject to attribution of the sources used to the extent reasonably feasible (page 33)

 Research institutions may need to keep a close eye on the SCCR discussions to ensure that research interests, as well as educational interests, are met.

Universalizing fair use: An important Argentinian proposal

The government of Argentina has submitted an important proposal in current negotiations towards an international instrument on limitations and exceptions to copyright at the World Intellectual Property Organization (WIPO).

Most international treaties seek to establish minimum standards.  In the case of the current WIPO negotiations, relating to exceptions and limitations to copyright for education and research institutions and persons with disabilities, this means that all countries would agree to permit a minimum set of things, such as permitting photocopying for classroom use or reproduction for classroom display.

As the Argentinian government notes, this often does not go far enough, especially in the online context, since countries invariably differ widely in their implementation of such minimum standards, and digital transactions often involve multiple country jurisdictions.

Many everyday actions done in the context of educational institutions potentially involve multiple jurisdictions, and could be legal in one jurisdiction but not in the other:

• playing an Internet video from a web site based in one country in the classroom of another;
• uses of works in distance education, where students may be based in a different country from the instructor;
• downloading works from a web site in another country for educational purposes;
• making available or sending articles, texts, or digital course packs from one country to another.

Understanding the legality of any of these actions, along with many others, currently involves expensive legal analysis of the copyright regimes of multiple countries--an untenable situation for educational institutions, as the Argentinian government notes.

Argentina therefore proposes that "within the scope of a treaty on limitations and exceptions, lawful conduct in one territory should not be illegal in another. If reproduction or making available is valid under the treaty, it cannot then be invalid under the rules of another State jurisdiction." (p. 4).  The exact wording of the proposal is as follows:

Where performed in accordance with the exceptions and limitations set forth in this agreement, the reproduction or making available of a work shall be governed by the law of the country in which the reproduction or making available occur, without precluding the reproduced work from being delivered to or used by a person or institution benefitting from exceptions and limitations located in another Member State, provided that such delivery or use is consistent with the terms and conditions set forth in this agreement. (p. 4).

The Argentinian government has proposed a solution worthy of serious discussion at the WIPO meeting to be held next week.

Delhi High Court issues historic decision for access to knowledge and education

In September, the Delhi High Court handed down a groundbreaking judgement dismissing Cambridge University Press, Oxford University Press, and other academic publishers’ copyright infringement suit against the Rameshwari Photocopy Service and the University of Delhi.  Read my full post about it here on the Cambridge University Press blog.

Fair dealing and course packs: Canadian and international challenges

A draft study presented last week at the World Intellectual Property Organization (WIPO) is of particular relevance to Canada.  The revision of the Canadian Copyright Act's fair dealing provisions in 2012 to include dealing for educational purposes, as well as a Supreme Court of Canada decision of the same year relating to classroom materials, have led many Canadian universities to conclude, and to adopt the policy, that the inclusion of articles or book chapters, for example, in hard copy and electronic course packs, is fair dealing that does not require permission or payment of copyright fees.  This interpretation is currently being challenged in a Canadian lawsuit against York University.

Is the Canadian universities' interpretation of fair dealing in line with the policies adopted in other countries?  Professor Seng's study should shed some light on this question.  He notes that "Educational anthology limitations and exceptions are found in 94 provisions from 85 member states" (Sheng, 22).  However, some states place restrictions on course pack copying; 12 provisions, according to Sheng, require equitable remuneration to be paid to copyright holders (Sheng, 22).

Seng's study was introduced in the context of discussions toward a possible international instrument on copyright provisions for educational and research institutions.  Numerous states have made proposals for new international norms, some of which relate to the question of course packs.  Finland, for example, has made the main proposal on course packs.  It is very restrictive, in that it would require payment of remuneration, restrict anthologies to print anthologies only, and would allow only the use of works more than five years old (p. 26; see also p. 14).

Many of the proposals currently on the table at WIPO  (relating not only to course packs, but also to the use of copyright works in the classroom, in distance learning, in research, and in reverse engineering) are far more restrictive than current interpretations of Canadian educational fair dealing.  They are, therefore, important to watch.

Canadian universities' current interpretations of fair dealing as it relates to course packs could face two challenges: the first arises from the York University lawsuit, which may take ten years to wind its way to the Supreme Court of Canada.  The second comes from a possible WIPO international treaty or instrument that could reinforce or, just as possibly, restrict educational user rights in Canada.

Canada should take an active role in the negotiations, promoting robust and fair user rights for education.


--
NB: Chapter 4 of my book International Copyright and Access to Knowledge (discount code:Bannerman2015) addresses the history and present politics of copyright in educational works.  Titled "Access to education, libraries, and traditional knowledge," the chapter notes that while, at national levels, the history of Western copyright is strongly tied to the principle of access to education, the same is not true of the international copyright system, Rather, the international system, with its mission civilisatrice, served to restrict copyright provisions for the encouragement of education.

Libraries, archives' role in making orphan works accessible up for debate at WIPO

Discussion of the internationalization of copyright limitations and exceptions, such as expanded exceptions to copyright for libraries, educational institutions, and people with disabilities, continue this week at the World Intellectual Property Organization (WIPO)'s Standing Committee on Copyright and Related Rights.

Discussions of access provisions in international copyright have been ongoing since 2004 and have, so far, resulted in the establishment of the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  Today's discussions focused on building on the work done under the Marrakesh Treaty to see the possible establishment of an international instrument internationalizing copyright limitations and exceptions for libraries and archives.  International provisions are necessary because, as I note in chapter 4 of my book, International Copyright and Access to Knowledge (Cambridge UP, 2016):

libraries face a number of problems as they attempt to provide both traditional and new services to their users – many related to new technologies. Digitization, license agreements imposed by publishers of electronic journals and books, and Technological Protection Measures (TPMs) all introduce problems of access, preservation,and maintaining copyright exceptions. Moreover, the globalized possibilities of resource sharing, which take place increasingly across borders, are undermined by the territoriality of copyright law. IFLA, the ICA, and others suggest that a treaty is the best way to ensure that a minimum set of limitations and exceptions for libraries and archives exist, and that they apply in cross-border environments. (76)*

One focus of today's WIPO discussions was on the topic of orphan works, or copyright works where the copyright owner can't be found.  Libraries and archives are often the "adoptive parents" of orphan works; they are in a position to facilitate access to these works, especially through digital means.  However, copyright regimes often stand in the way, as can differing national regimes.  The International Federation of Library Associations and Institutions (IFLA), which is active at the meetings, notes that:

...there is a lot of progress to be made, with as many different copyright regimes there as there are states, each giving different types and degrees of protection if any at all. Moreover, as digital technologies bring about radical change in the information environment, a failure to act is the same as going backwards. This is why IFLA is engaging in support of change both at the global (WIPO) level, and nationally.

SCCR delegates. © WIPO 2016. Photo: Emmanuel Berrod.

 IFLA is asking for "changes which would give libraries the right to work across borders, to give access to orphan works, and to import books which are available in other countries."  For them, "the goal – an international framework which frees up libraries and librarians – is worth the effort."  After all, IFLA explains, "it’s through exceptions and limitations to copyright that we can do our job."

Current proposals that are on the table for orphan works (see page 34-39 of the current working document) would allow entities such as libraries to reproduce, make available to the public, and otherwise use orphan works.  Some proposals apply these provisions, as well, to retracted works (African Group, Equador, India), and some would require remuneration to authors or copyright owners who are subsequently identified (Equador).  However, there is no consensus among states on such proposals, with the United States and the European Union among the key detractors.

The chair's summary of today's discussion is expected to be disseminated tonight.

Tomorrow's discussions are expected to focus on the internationalization of exceptions and limitations for educational and research institutions and for persons with other disabilities.

For those following the discussion, a number of groups are blogging and tweeting from WIPO:

• WIPO webcasts the meeting live
• WIPO posts pictures from the meeting on flickr
• Follow the #SCCR32 hashtag on twitter
• Knowledge Ecology International is blogging the meetings
• The International Federation of Library Associations and Institutions (IFLA) is tweeting from the SCCR
• IFLA held a side-event "Shelves to Servers: Digital Content in Libraries and Archives"
• The Electronic Frontier Foundation hosted a side-event on music and copyright with Imogen Heap

My June 2015 post about these negotiations is here.
* Discount code for International Copyright and Access to Knowledge: Bannerman2015

Sci-Hub and the history of copyright in scientific works

Sci-Hub, the "Napster for academics", is a project based in the notion that scientific knowledge should be made freely available.  John Willinsky, in his recent article for TimesHigherEd, quotes from a letter sent by Sci-Hub's founder, Alexandra Elbakyan,  in which she explains why she founded the hub:

Elbakyan explains that as a student in Kazakhstan, she found the “payment of $32 [Elsevier points out that it’s as high as $41.95] is just insane when you need to skim or read tens or hundreds of these papers to do research”. She adds: “I could obtain any paper by pirating it so I solved many requests and people always were very grateful for my help.”

Willinsky argues, "This right to know is also behind this new, emerging academic publishing economy. It is aligned with the broader social and intellectual movement of open science."

However, the founder of Sci-Hub is currently being sued by Elsevier for copyright infringement.

Chapter 3 of my new book, International Copyright and Access to Knowledge  is called "Access to scientific knowledge." It recounts the history of international copyright in scientific  works.  In the chapter, I note that when the international copyright system was founded, scientific journal articles were placed, by default, in the public domain.  This is due in large part to the efforts of Haitian diplomat, doctor, and writer Louis-Joseph Janvier, in fighting for broad and liberal access to scientific works worldwide.  It recounts historical debates over the question of whether copyright should apply to scientific works, and traces the transformation of the international copyright system and the narrowing of principles of access to scientific works.

As Willinsky notes, Elbakyan carries on a tradition of civil disobedience that represents "a 10-fold escalation of the tragic protest of Aaron Swartz, a gifted US computer scientist and entrepreneur who committed suicide two years ago after being charged with theft for downloading 4 million journal articles to his laptop." Her efforts also reflect a sentiment that can be traced right back to the founding of the international copyright system, to before a time when copyright took a wrong turn.

Upcoming talk @ Ryerson: International Copyright and Access to Knowledge

Here is the poster for my upcoming talk for students at Ryerson University's School of Creative Industries' CREA T.O. speakers' series about my new book, International Copyright and Access to Knowledge.  Thanks to Ryerson student Daphne Chan, who created this terrific poster!

New Book: International Copyright and Access to Knowledge

My new book, International Copyright and Access to Knowledge,  is now available from Cambridge University Press.

The principle of Access to Knowledge (A2K) has become a common reference point for a diverse set of agendas that all hope to realize technological and human potential by making knowledge more accessible. This book is a history of international copyright focused on principles of A2K and their proponents. Whilst debate and discussion so far has covered the perspectives of major western countries, the author's fresh approach to the topic considers emerging countries and NGOs, who have fought for the principles of A2K that are now fundamental to the system. Written in a clear and accessible style, the book connects copyright history to current problems, issues and events.

"Sara Bannerman's thoughtful and compelling book is a must-read for all of those interested in the challenges of increasing access to knowledge. She offers historical perspective on the narrowing of the knowledge commons and identifies opportunities for positive change going forward."
-Susan K. Sell, George Washington University

 International Copyright and Access to Knowledge is available through CUP, Amazon, on Wordery. An excerpt is available here.  Purchases through CUP can make use of 20% discount code Bannerman2015.

Digital Dividends of Intellectual Property

The World Bank's January Digital Dividends report assesses the extent to which information and communication technologies (ICTs) have contributed, over the past decades, to global development.  Its conclusion is that "while digital technologies have been spreading, digital dividends have not" (2).    It suggests two reasons for this: first, nearly 60% of the world is still offline, and, second, rising economic, social, and political inequality, all of which can be exacerbated by networks, stand in the way of full sharing in digital dividends.

The World Intellectual Property Organization (WIPO) has sometimes suggested that intellectual property is a "power tool" of economic development.  This view has long been challenged by those who note that IP comes with costs as well as benefits.  Costs can include higher prices in drugs and copyright materials, as well as reduced policy flexibility to respond to basic needs.  These costs, noted in a 2004 proposal by developing countries to WIPO, have now been acknowledged in WIPO's own formal Development Agenda.

The World Bank's report makes mention of intellectual property in several contexts.  It mentions:

1. that innovation and growth depend on IP (p. 221, p. 302)
2. that international IP regimes require greater harmonization (p. 62-63; p. 297)
3. that IP needs to be balanced (p. 221) and that “countries can also allow the concept of “fair use” in intellectual property regulations” (p. 303; emphasis added).

The Bank's comments represent an view of IP that lacks nuance and balance, failing to take on board the extensive research done on the relationship between IP and development.  First, the World Bank's report, while noting the complexity of the relationship between ICTs and development, fails to take on board this same complexity when it comes to IP.  While arguing that innovation depends on IP, it fails to note the ways that IP can impede innovation (more on this below).

Second, Digital Dividends does not take adequately into account the ways that international IP regimes have failed to facilitate development and, at times, have stood in the way of development by impeding access to educational materials and pharmaceuticals.  The UK Commission on IP Rights long ago noted that "the interests of developing countries are best served by tailoring their intellectual property regimes to their particular economic and social circumstances" (156).  The Commission also argued that "there are strong arguments for greater flexibility in setting an optimum time to strengthen IP protection, taking into account the nation’s level of economic, social and technological development" (161).  International IP regimes take numerous options off the table when it comes to tailoring IP regimes; they greatly restrict states' flexibility in this regard.  The Commission called on developed countries to "discontinue the practice of using regional/bilateral agreements as a means of creating TRIPS-plus IP regimes in developing countries as a matter of course" (163).  This does not match with the World Bank's emphasis on the urgency of  further harmonization.

Third, the World Bank's report under-emphasizes the need for fair use and other limitations and exceptions to IP.  Here, Digital Dividends  utterly fails to take on board extensive research indicating the potential of such measures to contribute to development of various types, including development in the fields of education, health, innovation, technology, and clean technologies.

Jeremy de Beer and I have noted that the relationship between IP and development are a much more complex matter than the "power tool" view suggests.  Too much protection can be as bad as not having enough, contributing to gridlock (where IP is held by too many different people such that it impedes efficient market transactions) and high costs to the inputs of innovation (77).  (IP protection may also be irrelevant to encouraging innovation, if IP services are not available, as Rutenberg notes.)  Models of IP that emphasize access and openness in intellectual property can, de Beer and I argue, facilitate collaboration, universal participation, and adaptation of products to local communities (80).  Further, we note that IP can facilitate the concentration of wealth in the hands of multinationals (77).  Such inequality is exactly, as the Bank itself notes, what stands in the way of the potential of digital dividends.

Canada considers copyright registration - again

The Embassy News reports that Canada is considering making the extra twenty years' term extension under the Trans-Pacific Partnership Agreement conditional on copyright registration.

Such a move would have many advantages, and would permit those works that are not registered to fall into the public domain.  However, Embassy notes that the Berne Convention, a foundational copyright treaty, prohibits making formalities such as registration a condition of granting copyright.  As Embassy notes, the Berne Convention is ambiguous as to whether this prohibition lasts for the full term of copyright, or whether it covers only the initial Berne-mandated term of life plus fifty years, leaving countries free to do what they want after that.

This isn't the first time that Canada has hit up against this dilemma.  In 1931 Canada passed a Copyright Act that also required certain types of registration, and the same question arose.  At issue, in particular, was the requirement that copyright collectives register lists of the works they claimed to grant licenses in.  It was felt that copyright collectives were claiming copyright infringement in works they had no rights in and that, to hold them accountable, lists of their works should be published.

No major challenge to Canada's provisions was ever brought under the Berne Convention.

For more details, see The Struggle for Canadian Copyright, pp. 121-125.

Here are the relevant sections of Canada's 1931 Copyright Act:

While the proposed option could be a move demonstrating much-needed copyright innovation with the public interest in mind, an even better option would be not to implement the TPP.

WIPO to discuss library and archive copyright provisions

Some interesting proposals will soon be under discussion at the World Intellectual Property Organization that could free libraries, archives, educational and research institutions, and people with disabilities from copyright provisions that hamper their ability to make use of copyright works.  Read my full post about the upcoming meeting on WIPOMonitor.org here.

Canadian copyright reform for people with print-disabilities

Yesterday Industry Minister Candice Bergen introduced Bill C-65, the Support for Canadians with Print Disabilities Act  for first reading in Canadian Parliament.  The Act will allow Canada to ratify the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

Among other things, the bill would allow non-profit organizations acting for the benefit of persons with a print disability to create accessible-format works and provide those works (or access to those works) to people with print disabilities and to non-profit organizations acting for their benefit outside of Canada (s. 32.01 (1)) on payment of royalties set by regulation (s. 32.01 (4)).  It would also allow the circumvention of TPMs for these purposes (s. 41.16).  The Act sets out reporting requirements (32.01(6)) and requirements that contracts be put in place with outside organizations regarding the use of the works (32.01(7)(a)).

This is a welcome move.  It would facilitate access to books and other copyright materials around the world, allowing Canadian organizations to work with their counterparts in other countries to make works accessible.   It would also make Canada the first G7 country to ratify the Marrakesh Treaty.

Canada joins Marrakesh Treaty

I have long called on the Canadian government to join the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. yesterday, the Toronto Star reports that Industry Minister James Moore announced Canada's accession.  This is great news.

Eight countries have ratified or acceded to the Marrakesh Treaty, which will enter into force when that number reaches 20.  Canada's accession brings that number to 9.  Canada is the first G7 country to implement the treaty.

Canada's Copyright Mystique

Two recent law review articles, both responding to the July 2012 release of the Supreme Court of Canada's "pentalogy" of decisions on copyright, take somewhat opposite views of the relationship of the Court's decision to Canadian copyright history.

Professor Ysolde Gendreau of Université de Montréal's law school argues[1] that Canadian copyright law, leading up to the Court's decision, lacked a statement of a broad purpose or philosophy of Canadian copyright.  There was, for example, no statement in the preamble to the Canadian Copyright Act outlining the act's overall purpose.  It also lacked an "historical mystique" that would lend an historical purpose to Canadian copyright, the way that, for example, the storied history of the French authors' rights movement lends understanding to the interpretation of French copyright today.  Given this absence, the Court strode into the void and fashioned for Canadians a purpose that placed users' rights on a similar level with authors' rights in Canadian copyright law--a step that Gendreau believes has "no textual foundation."

Professor Myra Tawfik of the University of Windsor's law school argues[2], on the other hand, that the Court, rather than taking a wrong turn in the absence of clear directional purpose, "demonstrates  a depth of understanding of, and a confidence in, Canada's own particular copyright story"--a story that is very different from those of countries like France, the US, or the UK.  Tawfik argues that the Court now finds itself not in a relative void, but rather in the midst of a fairly developed area of Canadian law: "Canadian copyright law is sufficiently well developed and internally coherent to stand on its own merits."

Both authors note that the literature on the "historical mystique" of Canadian copyright is beginning to appear; they cite my book, The Struggle for Canadian Copyright, Eli McLaren's Dominion and Agency, and Pierre-Emmanuel Moyse's "The Colonies Strike Back" chapter as offering some of the history of Canadian copyright.

In my view, Professor Tawfik's view is correct. The Court's view of the purpose of Canadian copyright law, which places users' rights on a similar footing to those of authors, reflects longstanding concerns in Canadian copyright history with the accessibility of books, their affordability, and also with developing Canadian creative industries and encouraging Canadian creativity.  The developing range of literature on Canadian copyright history reflects this.

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1. Gendreau, Ysolde. "Recent Canadian Development: Fair Dealing: Canada Holds to its Position." J. Copyright Soc'y 60 (2013): 673-673.

2. Tawfik, Myra J. "The Supreme Court of Canada and the" Fair Dealing Trilogy": Elaborating a Doctrine of User Rights under Canadian Copyright Law." Alberta L. Rev. 51 (2013): 191-201.

Last chance: Canada should sign Visually Impaired Treaty

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, which would make accessible-format copyright works more available, was finalized almost a year ago on June 27 2013.

Whereas 66 countries, including the EU, France, the UK, and the United States, have all signed the treaty, Canada as yet has not.

The treaty is open for signature for up to one year; that deadline is coming up soon in June.  Canada should sign the treaty to indicate its support for ending the book famine affecting accessible-format works.  Canada's signature belongs on the treaty, given the role that Canada reportedly played during the treaty's negotiation.