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.

Canada's bid to join TPP threatens access for blind, print disabled

There is a danger that, in Canada's quest to join the Trans-Pacific Partnership Agreement (TPP), Canada may cede whatever leadership it has gained in the field of progressive copyright provisions. Canada's Bill C-11, the proposed "Copyright Modernization Act", includes provisions that would allow people who are blind and print disabled to circumvent Technological Protection Measures(TPMs) to access works (s. 41.16). These provisions, while they have been criticized as not going far enough, at the same time could put Canada on the map as being among the first to enact such provisions for the benefit of the blind and print disabled. Under the last leaked text of the American proposal for the TPP, these types of provisions would not be allowed as a permanent exception. The proposal enumerates (Art. 4, 9 (d)) the various possible permanent exceptions to TPM infringement, and these do not include a specific exception for the benefit of people who are blind and print disabled. The proposed TPP allows for temporary exceptions, which could include an exception for the blind and print disabled, but these would have to be subject to review or renewal every 3 years (Art. 4, 9(d)(viii)). Bill C-11 does not provide for such a review/renewal process.

The other possibility that has been suggested by many commentators, is to limit the provisions of Bill C-11 so as to prohibit only circumvention for infringing purposes.

All of this comes on the heels of difficulties at WIPO in the negotiation of a treaty for the blind and visually-impaired, where it seemed progress had been swifter until December.

If Canada joins the TPP negotiations, this could provide an opportunity to negotiate on the TPP TPM provisions, as well as other improvements to the TPP. (KEI suggests a few, including new norms on the sharing of accessible works, and requiring open access for publicly-funded research.) On the other hand, if Canada is not successful in negotiating better terms, then Canada may have given away a leading and innovative legal solution to an important problem. There is a danger that, under the TPP, Canada could abandon the rights of those who are blind and print disabled to access works.